text:
    16950.
    Hopkins Investment Company v. Crawford.
    Appeal and Error, 4 O. J. p. 649, n. 36.
    Certiorari, 11 C. J. p. 92, n. 75; p. 151, n. 51, 54 New.
    New Trial, 29 Cyc. p. 957, n. 63 New.
   Bell, J.

1. Where, in a case tried by a jury in the municipal court of Atlanta, the judge directed a verdict, and the losing party made a timely oral motion for a new trial, a ground of the motion which eomplained that the court erred in such direction because there were issues of fact for determination by the jury, was sufficient to raise the question of whether, under the pleadings and the evidence, the particular verdict directed was demanded as a matter of law. Meeks v. Meeks, 5 Ga. App. 394 (63 S. E. 270) ; Ewing v. Bowser, 14 Ga. App. 305 (80 S. E. 693); Savannah Trust Co. v. National Bank of Savannah, 16 Ga. App. 706 (86 S. E. 49).

Decided April 20, 1926.

Certiorari; from Fulton superior court—Judge Bell. October SO, 19S5.

Jaclcson & Moore, for plaintiff in error. M. Herzberg, contra.

2. Where a petition for certiorari to review a judgment overruling such motion set forth the grounds of the motion and disclosed that one of them was as indicated above, a general assignment, then made in the petition, that the court erred in overruling the motion was sufficient to bring into question the propriety of the court’s action in directing the verdict. Huxford v. Southern Pine Co. of Ga., 124 Ga. 181 (52 S. E. 439) ; Reese v. Miller, 33 Ga. App. 442 (2) (126 S. E. 904).

3. A petition for certiorari should not be dismissed for want of sufficient assignments of error, if it contains one sufficient assignment. Sizemore v. Woolard, 3 Ga. App. 261 (1) (59 S. E. 833).

4. The party against whom the verdict was directed had the right to insist, by motion for a new trial, that such direction was error, and also to except by certiorari to the overruling of the motion. Stewart v. Citizens & Southern Bank, 30 Ga. App. 112 (117 S. E. 115). See also, in this connection, Johnston v. Brenau College Conservatory, 146 Ga. 182 (91 S. E. 85) ; Taylor v. Mutual Benefit Industrial Life Ins. Ass. of Ga., 146 Ga. 660 (92 S. E. 47) ; Gresham v. Lee, 152 Ga. 829 (111 S. E. 404) ; Sims v. Nelson, 31 Ga. App. 271 (121 S. E. 863) ; Geer v. Grow, 31 Ga. App. 254 (120 S. E. 426) ; Kirk v. Jefferson Loan Society, 31 Ga. App. 425 (120 S. E. 696) ; Long v. Burge, 32 Ga. App. 97 (122 S. E. 716) ; Freedman v. Bush, 30 Ga. App. 757 (119 S. E. 421); Reese v. Miller, 33 Ga. App. 442 (126 S. E. 904).

5. The judge of the superior court properly refused to dismiss the petition for certiorari upon the ground that it contained no sufficient assignment of error. This ruling is not to be construed as deciding whether other assignments in the petition, not here referred to, are valid or invalid. The judge having refused the motion to dismiss, and it clearly appearing that at least one assignment was sufficient, it is unnecessary to pass upon the validity of the others at this time. Compare Vandalsem v. Caldwell, 33 Ga. App. 88 (7) (125 S. E. 716).

Judgment affirmed.

Jenloins, P. J., amd Stephens, J., concur.


source: Caselaw Access Project

author: Jenkins, P. J.

license: Public Domain

text:
    16959.
    Pullen v. Powell.
    Recoupment, Set-Off, and. Counterclaim, 34 Cyc. p, 718, n. 42; p. 749, n. 98.
    Trial, 38 Oye. p. 1567, n. 97.
    Decided April 20, 1926.
    Petition to foreclose mortgage; from Calhoun superior court— Judge Custer. October 24, 1925.
    J. H. Pullen, as transferee, brought suit on a note signed by E. E. Powell. The defendant filed an answer alleging that the note was originally payable to J. K. Pullen, the father of the plaintiff; that it was given for borrowed money; that it was transferred and assigned to the plaintiff on February 4, 1924, after maturity, the note having become due November 19, 1922; that from August 1, 1922, until the filing of the suit the original payee of the note owed him a board bill for the former’s wife of $25 per month, and about $100 board for himself; which amounts the defendant prayed to set off against the plaintiff’s demand. The defendant testified that the note was given for borrowed money, and that the “contract in which this note was made was altogether a different contract from the one that I had with him about boarding his wife; it was made previous, at a different time and on a different subject-matter.” At the conclusion of the evidence .the court directed a verdict for the defendant. The plaintiff’s motion for a new trial was overruled, and he excepted.
   Jenkins, P. J.

1. “When a negotiable paper is sued on by a holder or indorsee, received under dishonor, no set-off is allowed against the original payee, except such as is in some way connected with the debt sued on, or the transaction out of which it sprung.” Civil Code (1910), § 4344; Polk v. Stewart, 144 Ga. 337 (87 S. E. 21) ; Kinard v. Sanford, 64 Ga. 630. Accordingly, where the testimony for the defendant showed that the claim which he sought to set off against the transferee’s action upon a note given to the original payee for borrowed money consisted of a demand against the original payee for services subsequently rendered under an independent contract, in no way connected with the transaction in which the note was given, the court erred in directing a verdict for the defendant.

2. While it is true that “if the plaintiff sues for the benefit of another person, a set-off against the beneficiary shall be allowed,” a verdict for the defendant in the instant case could not be directed on this principle of law, since the evidence for the defendant, when taken by itself, did not conclusively show that the plaintiff was not the owner of the note assigned to him, and the plaintiff on his part testified that he in fact became by purchase the holder and owner of the note sued on.

Judgment reversed.

Stephens and Bell, JJ., concur.

A.'L. Miller, for plaintiff. E. L. Smith, for defendant.


text:
    16970.
    MILLER v. FIRST NATIONAL BANK OF MADISON.
    Where a promissory note stated that it was given for purchase-money of a described automobile owned by the maker of the note, and that “the title remains in the payee hereof until this note with interest and attorney’s fees are paid in full,” the note imported a contemporaneous conveyance of the automobile by the maker of the note to the payee, from whom the maker assumed to purchase it; and the reservation of title, being duly recorded, was effectual as against one who subsequently obtained judgment against the maker.
    Under the undisputed facts in the ease, a verdict in favor of the claimant was demanded.
    Contracts, 13 O. J. p. 521, n. 18; p. 523, n. 19; p. 527, n. 46; p. 784, n. 78.
    Executions, 23 O. J. p. 602, n. 29.
    Sales, 35 Cyc. p. 668, n. 22 New.
    Decided April 20, 1926.
    Claim; from city court of Madison—Judge Lambert. October 6, 1925.
    The evidence in this case is undisputed. The attorney for the claimant, Mrs. Miller, testified: Mrs. Miller “wrote me that W. H. Malone owed her and she wanted it secured. I saw him and he said the only thing he had to secure her with was his automobile. I told him she would take title to it, and he gave her that paper.” The paper referred to purports to be a purchase-money conditional-sale note, is dated July 27, 1922, and was duly recorded on August 5, 1922. It recites as follows: “This obligation is given for purchase-money of the following described property, to wit: one'seven-passenger Buick automobile, model E-49, engine number 421930, being the car I have been driving and the only car I own. The title remains in the payee hereof until this note with interest and attorney’s fees are paid.in full.” On August 12, 1922, a judgment in favor of the First National Bank of Madison was obtained against H. L. Malone, as principal, and the said W. H. Malone as indorser. An execution based thereon was, on October 4, 1922, levied on the automobile described in the conditional-sale note, and Mrs. Miller interposed a claim to the automobile, based on that instrument. No attack was made upon the bona fides of the transaction between W. H. Malone and Mrs. Miller. The jury found in favor of the plaintiff in fi. fa. The claimant’s motion for a new trial was overruled and she excepted. The contention of the plaintiff in fi. fa. is that since it appears that the automobile was the property of W. H. Malone before the execution of the note, as shown by the instrument itself, and since it does not appear that the machine was actually delivered to Mrs. Miller under any oral contract of sale, or any sale in writing by Malone to her, Mrs. Miller had never owned or possessed and had never sold or delivered the automobile to Malone so that title could be retained by her under the instrument upon which she relies.

      F. II. George, for plaintiff in error. Q. L. Williford, contra.
   Jenkins, P. J.

Section 4368 (3) of the Civil Code (1910) provides that “the construction which will uphold a contract in whole and in every part is to be preferred, and the whole contract should be .looked to in arriving at the construction of any part.” Section 4266 of the Civil Code (1910) provides that “the cardinal rule of construction is to ascertain the intention of the parties. If the intention be clear, and it' contravenes no rule of law, and sufficient words be used to arrive at the intention, it shall be enforced irrespective of all technical or arbitrary rules of construction.” In the instant case it is unmistakably clear that the intention of both Malone and Mrs. Miller was that her debt should be secured by a title to the automobile in question; and that the paper in question was executed by Malone in response to her offer to take title to the machine. While it is true that the record does not show that actual delivery of the machine was made by Malone to Mrs. Miller, or that any independent bill of sale was executed by him to her, the language of the written instrument signed by Malone is such as conclusively to import that title had actually passed, and would thereafter remain in the payee of the note until the debt described therein had been fully satisfied. This being true, the lien of the judgment creditor upon the equity of redemption could only be reached by paying off the amount owing on the note, as provided by section 6038 of the Civil Code (1910). It is a pure question' of law as to 'whether the title to the automobile was or was not in the claimant under her conditional-sale note. The case is controlled by the ruling of this court in Brooks v. Folds, 33 Ga. App. 409 (126 S. E. 554). The only other case we have been able to find which appears directly to bear upon the point is an Indiana case, Cable Co. v. McElhoe, reported in 108 N. E. 790, which supports the previous ruling of this court as now adhered to. The third division of the syllabus in that case is as follows: “A buyer of a piano on credit gave a chattel mortgage to secure the price, subject to the condition that the piano should not be removed. The buyer desired to remove the piano to another state, and, after negotiations, a conditional contract of sale reserving title in the seller until the price was paid was entered into. Held, that the contract was the equivalent of a repurchase of the piano by the seller, and a resale thereof to the buyer, reserving title in the seller until the price was paid, and the transaction so construed was valid if made in good faith.” We think the reasoning in the Broolcs case and in the Indiana case is sound, and that in the instant case the signing by Malone of the conditional-sale contract was the equivalent of or necessarily imported a contemporaneous conveyance of the automobile by him to the person from whom he unmistakably assumed to purchase it.

Judgment reversed.

Slepliens and Bell, JJ., concur.


author: Jenkins, P. J. Jenkins, P. J.

text:
    16982.
    MOORE v. FLOWERS LUMBER COMPANY.
    Evidence, 22 C. J. p. 1227, n. 65 New; p. 1255, n. 53.
   Jenkins, P. J.

1. “Where one deliberately signs a promissory note for a stated sum, without informing nimself as to the correctness of the amount named, but relies upon the promise of the other party to the contract that it would be revised so as to correct errors, the maker will not be heard to contradict the written instrument by setting up such parol understanding in opposition thereto. The terms of the writing can not be defeated upon the ground of mistake made at the time the instrument was executed, when it thus appears that it was not even the intention of the signer that the settlement was to be accurate and final,’ but that under an oral agreement the terms of the instrument were to be varied and revised according to the true state of facts that might thereafter appear. Wilson v. Bush, 22 Ga. App. 83 (95 S. E. 317); Dyar v. Walton, 79 Ga. 466 (7 S. E. 220); Brack v. Brantley Co., 134 Ga. 495 (67 S. E. 1128). And see Atlanta Journal v. Power, 27 Ga. App. 280 (108 S. E. 121). Applying this rule to the allegations of the defendant’s plea in this case, the court did not err in sustaining the demurrer thereto.” Slacer v. Ehrlich, 22 Ga. App. 285 (95 S. E. 1016).

Decided April 20, 1926.

Adhered to on rehearing June 14, 1926.

Complaint; from city court of Barnesville—Judge Darsey presiding. October 9, 1925.

G. J. Lester, for plaintiff in error. Leon 0. Greer, contra.

2. There was no error in overruling the defendant’s motion for a new trial, which was based upon general grounds only.

Judgment affirmed.

Stephens and Bell, JJ., concur.

ON REHEARING.

Jenkins, P. J.

A rehearing was granted the plaintiff in error, it being set forth in his motion therefor that the clerk failed to send up one of the specified amendments to his plea, which had been allowed, and which set up the delivery of a specified car of lumber by the defendant to the plaintiff for which he owed, and for which defendant claimed credit by way of set-off to the note sued on. It appears, however, from the amendment itself, which has been sent up by the clerk and is now before us, that the amount thus claimed does not purport to consist of a set-off arising subsequently to the settlement had at the time the note was given in liquidation of the balance due, but relates to a transaction antedating the liquidation of the account by the giving of the note sued on. The note sued on was dated August 21, 1923, and was for $922.89; and evidences a credit of $200 by a payment made on October 8, 1923. In the original plea the defendant averred: “that at the time the note sued on was given, W. H. Flowers Jr., one of the plaintiff company, came to see defendant at his place of business and represented to defendant that his company was in a strait for money, that they were compelled to raise some money immediately, and told this defendant that if he' would sign the note that they, plaintiff company, could use it to raise money. This defendant then and there declined to sign the note and told Mr. Flowers that the note was- for too much, that defendant did not owe the plaintiff that amount. Defendant then and there told Flowers that no settlement had been made between the plaintiff and defendant, and that' defendant did not know how much he was really due plaintiff. Then said W. PI. Flowers Jr. urged this defendant to sign the note sued on, repeating that they just had to get up some money right away, and stated that if defendant would give the note that they would go over the accounts later and have a full settlement, and that if the amount was not right they would correct it and make it right; said he was in a hurry and did not have time then to go over the matter and see how the accounts between defendant [and] plaintiff stood. Defendant then and there insisted the note was for inore than was due plaintiff, but, after the statements and promises on the part of W. H. Flowers to correct any mistake as to the amount found to be due on a settlement, this defendant agreed to and did sign the note sued. Defendant knew that he was due plaintiff some amount, but was confident then that the note presented was for more than defendant was due, and so stated to Mr. Flowers as aforesaid, but under his promise to later go over and check up the accounts with defendant and have full settlement, and that if the amount of the note was not correct that the plaintiff would malee it right and correct any mistake as to the amount of the note, under this promise and agreement defendant, reposing full confidence in the promises made, signed the note sued on, believing that the plaintiff would make good the agreement and promise to correct any mistake in the note. Defendant would not have signed the note but for the promise and agreement aforesaid.”

The original plea of the defendant setting up certain credits to which he would be entitled on a settlement, including the disputed shipment subsequently set forth in the last amendment to the plea, and embodying the language quoted above, was demurred to by the plaintiff, and the demurrer was sustained by the court. The court allowed the amendment referred to, setting up a set-off, under which the case was tried, which was filed without objection and was in terms as follows: “Now comes the defendant in the above-stated case and amends his original plea and answer in said case, and pleads as follows, to wit: that at the time plaintiff commenced the above-stated case against defendant said plaintiffs were, and still are, indebted to this defendant in the sum of $510.16 .upon an open account for one car of lumber sold and shipped to the order of plaintiff, to wit: said ear of lumber was shipped for plaintiff in car B. & 0. No. 170003, and was shipped on the 19th clay of May, 1923, and contained 21,267 feet of boards, and the price agreed on to be paid by plaintiff is $24.00 per thousand feet, amounting to said sum of $510.16. Defendant prays that said amount or sum be set off against the plaintiff’s claim sued on.” On the trial of the issue raised by the amendment the evidence disclosed that the shipment referred to therein was made under the identical contract under which all the other shipments were madej and by the terms of the amendment itself the disputed shipment was made long prior to the giving of the note in liquidation, and prior to the credit entered 'thereon. It follows, therefore, that the case is controlled by the principle set forth in the syllabus, since the plea of the defendant and the evidence submitted thereunder bring the case squarely within the operation of that rule. Moreover, irrespective of the ruling indicated as controlling, while the case made by the defendant on the disputed shipment was strong, we do not think that under all the evidence'submitted, as construed in the light of all the proved surrounding facts and circumstances, including the implied admissions of the defendant, a finding for the plaintiff on that question of fact would have been absolutely unauthorized as a matter of law.

Judgment adhered to on rehearing.


text:
    16989.
    Lewis v. Clayton Bicycle Co.
    Bankruptcy, 7 C. J. p. 308, n. 58; p. 397, n. 3.
    Certiorari, 11 C. J. p. 195, n. 70.
   Jenkins, P. J.

1. In a suit for ’damages tó a truck, tried by a judge of the municipal court of Atlanta, where the only evidence introduced by the defendant was in support of his special plea in bar, setting up a discharge in bankruptcy, and where, after a judgment in favor of the plaintiff, the defendant sued out certiorari, and the petition for certiorari did not purport to set forth the evidence, except with reference to the special plea of discharge in bankruptcy, the question of law involved by the undisputed facts relative to the special plea in bar, as certified to by the trial court, is the only question which this court is authorized to pass upon. See Hayes v. Mayor &c. of Lithonia, 94 Ga. 552 (20 S. E. 46); Central of Georgia Ry. Co. v. Potter, 120 Ga. 343 (47 S. E. 924); Kelley v. Jones, 22 Ga. App. 444 (96 S. E. 181).

2. “Section 63-A of the bankruptcy act, defining provable debts, does not include a claim for unliquidated damages arising out of mere tort, which neither constitutes a breach of an express contract nor results in -any unjust enrichment of the tort-feasor upon which a contract may be implied. Section 17 of the bankruptcy act, which declares that a discharge shall release the bankrupt from all of his ‘provable debts’ except certain classes specified, refers to section 63 for the definition of what debts are provable, and does not by excepting clause add other classes, but merely limits the effect of a discharge; and this is true also of the amendment of February 5, 1903.” Schall v. Camors, 251 U. S. 239 (4 Sup. Ct. 135, 64 L. ed. 247). The court did not err in overruling the certiorari.

Decided April 20, 1926.

Certiorari; from Fulton superior court—Judge Bell. October 16, 1925.

B. B. Lmiberl, for plaintiff in error. Iiarry L. Greene, contra.

Judgment affirmed.

Stephens and Bell, JJ., concur.


author: Luke, J.

text:
    15699, 15700.
    BANK OF LUMPKIN et al. v. FARMERS STATE BANK et al.; and vice versa.

    Under the decision of the Supreme Court on certiorari in this ease, the former judgment of this court is vacated, and the judgment complained of in the main bill of exceptions is reversed.
    The court erred in allowing the amendment by which the defendants set up that they were not liable for ten per cent, attorney’s fees for the reason that the plaintiff had not contracted with its attorneys to pay ten per cent., but contracted to pay a less sum.
    Bills and Notes, 8 O. J. p. 956, n. 22 New.
    Pleading, 31 Oye. p. 447, n. 56.
    Decided May 12, 1926.
    Complaint; from Stewart superior court—Judge Littlejohn. May 17, 1924.

      G. Y. Harrell, B. 8. Wimberly, for Bank of Lumpkin et al.

      Wallis & Fort, Smith, Hammond & Smith, contra.
   Luke, J.

1. A decision in this case was rendered by this court (33 Ga. App. 117, 126 S. E. 280), and by certiorari the case was carried to the Supreme Court. It appearing from the remittitur and the decision of the Supreme Court that the judgment rendered by this court has been reversed, the former judgment of this court is vacated, and, in accordance with the ruling of the Supreme Court, the judgment of the court below on the main bill of exceptions is reversed. For a full statement of facts and the rulings of the Supreme Court, which are hereby adopted by this court, see Bank of Lumpkin v. Farmers State Bank, 161 Ga. 801 (132 S. E. 221).

2. Since, at the time of the rendering of the former decision, the dismissal of the cross-bill by this court was based on our judgment of affirmance in the main bill, as reported in the 33 Ga. App. 117, and since that judgment of affirmance has been reversed by the Supreme Court, a consideration of the cross-bill is now proper.

On the trial of the ease the defendants offered two amendments to their answer, the greater portions of which were disallowed by the court, and properly so, because they contained no clear allegation of a scheme or device for usury made at the time of the execution of the contract. See decision of the Supreme Court, supra. However, the trial judge did, over the objection of plaintiff, allow the defendants to amend their answer as follows: “The defendants allege that the amount sued for as attorney’s fees in this case can not legally be recovered of these defendants, for the reason that, while said sum is contracted for in said notes sued on, that the plaintiff has not paid nor agreed to pay any such sum in this case, but contracted with attorneys, as these defendants are informed and believe and so charge, for a lesser sum, to wit, the sum of $2000; also plaintiff procured counsel to handle the instant case for a much'less sum than 10% attorney’s-fees as contained in the notes, and defendants charge that counsel of record in this case undertook the collection of the notes sued on and handled this case, so defendants are informed, for the sum of $2000; that such sum is reasonable compensation for the entire services rendered in this case; these defendants are not liable for an excessive charge for attorney’s fees, and as to them the contract is without consideration.” To the allowance of this amendment the plaintiff in the court below filed exceptions pendente lite, and now excepts and assigns error thereon in its cross-bill of exceptions.

This amendment was improperly allowed. The amendment admits that the 10% attorney’s fees “is contracted for in said notes,” and the record shows that plaintiff gave sufficient notice, as provided by § 4252 of the Civil Code of 1910, that it would claim the 10% attorney’s fees so contracted for by defendants. This was payable to the plaintiff, and not to the plaintiff’s attorneys. If the services of the plaintiff’s attorneys had cost more than 10% of the claim, the defendants would not have been liable for the excess charge, and if the services of the attorneys cost less than 10% of the claim the' defendants are not entitled to any rebate thereon. The cost of the services of the attorneys is a matter of contract between the plaintiff and its attorneys. “As such attorney’s fees as are recoverable are in the nature of liquidated damages which inure to the benefit of the plaintiff, and are not a provision for the benefit of his attorney, a plaintiff who has given the required notice entitling him to recover attorney’s fees may waive them by settling with the defendant in full, or by accepting payments thereon from the defendant, under an agreement or understanding not to insist on the liability created by the notice.” Rylee v. Bank of Statham, 7 Ga. App. 490 (6) (67 S. E. 383). In Carson V. Blair, 31 Ga. App. 60 (2) (121 S. E. 517), the court said: “The stipulation in the note for the payment of attorney’s fees was made for the benefit of the holder of the note, and presumably the suit, in counting for attorney’s fees, is proceeding solely for the benefit of the plaintiff.” “Where a promissory note provides for the payment by the maker of principal, interest, and attorney’s fees, the attorney’s fees are a part of the principal debt. ” Evans v. Atlantic National Bank, 147 Ga. 621 (2) (95 S. E. 219). See also Hamilton v. Rogers, 126 Ga. 27 (3-a) (54 S. E. 926); Mount Vernon Bank v. Gibbs, 1 Ga. App. 662 (58 S. E. 269).

It is not necessary to consider the other assignments of error in' the cross-bill of exceptions.

3. The errors in the rulings upon the pleadings rendered the further proceedings in the- case nugatory.

Judgment on main hill of exceptions reversed; judgment on cross-lill reversed.

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


author: Bloodworth, J.

text:
    15797.
    Brown v. Globe & Rutgers Fire Insurance Company, etc.
    Decided May 12, 1926.
    Complaint on fire-insurance policy; from city court of Atlanta —Judge Reid. April 22, 1924.

      George & John L. Westmoreland, for plaintiff.

      Smith, Hammond & Smith, for defendant.
   Bloodworth, J.

By writ of certiorari this ease was carried from this court to the Supreme Court of Georgia. In a decision rendered by that court on February 19, 1926, the judgment of the Court of Appeals (33 Ga. App. 141, 126 S. E. 268) was reversed. See 161 Ga. 849. (133 S. E. 260). It is therefore ordered that the original judgment rendered by this court be and the same is vacated, and that the judgment of the city court of Atlanta, granting a nonsuit, be

Reversed.

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


text:
    15953.
    Wood v. Floyd County.
    Decided May 12, 1926.
    Action for damages; from Floyd superior court—Judge Wright. September 24, 1924.

      Porter & Mebane, for plaintiff. Nathan Harris, for defendant.
   Bloodworth, J.

Questions certified by this court to the Supreme Court of Georgia in this ease ivere answered by that court as follows: “1. Where a county owns a tract of land and quantities of stone and operates a quarry thereon, and has been engaged there for several years in crushing rock to be used in making and building the public highways of the county, it will be held to have been exercising governmental functions, and no liability will attach to the non-performance or. improper performance of the duties of the officers, agents, or servants of the county in respect to these governmental functions. It would not affect the public character of the officers, agents, or servants of the county that a purely incidental profit might result to the county from its operation and management of the quarry, or because of a sale to the public of a portion of the stone crushed at said quarry. 2. In this case the county has no authority of law to engage in the business of crushing and selling rock to the public; and if its officers, agents, or servants undertake to do so, their acts are ultra vires, and no liability will attach to the county by reason of the non-performance or improper performance of such acts in such circumstances.” For full opinion of the Supreme Court se.e 161 Ga. 743 (131 S. B. 882).

Under the foregoing rulings the judge of the trial court did not err in sustaining the demurrer and dismissing the case.

Judgment affirmed.

Broyles, G. J., and Luke, J., coneur.


author: Broyles, O. J.

text:
    16536.
    Dawson v. Shave.
    Executors and Administrators, 23 G. J. p. 1044, n. 96.
   Broyles, O. J.

1. Where a man dies intestate leaving no wife nor any relatives except one sister and the children and grandchildren of four deceased sisters and one deceased brother, all the said surviving relatives being sui juris and qualified to administer on the estate, the person selected in writing by the sister of the .intestate is entitled to letters of administration in preference to the person selected in writing by a majority of the children of the intestate’s deceased sisters and brother, although this majority of the children constituted a majority of the heirs of the estate both numerically and in point of interest. Dawson v. Shave, 162 Ga. 126 (132 S. E. 912).

2. Under the above-stated ruling the judgment of the court of ordinary appointing D. I. Dawson as administrator of the estate in question was correct, and the judge of the superior court erred in sustaining the caveat and in appointing W. R. Shave as such administrator, and in overruling Dawson’s motion for a new trial.

Decided May 12, 1926.

Appeal; from Liberty superior court—M. Price, judge pro hac vice. April 15, 1925.

IF. 0. Hodges, for plaintiff in error. B. F. Mills, contra.

Judgment reversed.

Luhe cmd Bloodworth, JJ., concur.


text:
    16775
    Groves v. The State.
    Decided May 12, 1926.
    Conviction of abandonment of child; from Murray superior court—Judge Tarver. August 12, 1925.

      Maddox, Maddox & Mitchell, for plaintiff in error.

      G. G. Pittman, solicitor-general, contra.
   Bloodworth, J.

1. Where a jury trying a criminal case returns and publishes in open court a verdict of nou guilty, which is regular in form, the judge has the legal right and authority on his own motion to poll the jury, and, when some of them have said that the verdict “was not their verdict,” to refuse to receive the verdict, and to direct the solicitor-general to erase the verdict from the indictment, and the jury “to retire to their room and consider the case further.”

2. Where, under the circumstances stated above, counsel for the defendant “objected to the erasing of the verdict of not guilty from said indictment, and to the court’s ordering the jury back to their room to further consider said ease, and moved the court to receive the verdict as read by the solicitor-general in open court and allow it to be filed,” the court did not err in overruling the motion.

3. When the jury, under the circumstances stated above, had followed the instructions of the court, retired to their room, and, after a further consideration of the case, returned a verdict of guilty, the court did not err in receiving this verdict and entering judgment thereon over the protest of counsel for the defendant that the jury had “previously returned a verdict into open court, which was read and published in open court, of not guilty.”

3. The foregoing are the headnotes to the decision of the Supreme Court in this case, in answer to questions certified by this court. Eor the full opinion of the Supreme Court see 162 Ga. (132 S. E. 769). Under the decision of the Supreme Court the trial judge did not err in any of his rulings of which complaint is made in the bill of exceptions.

Judgment affirmed.

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


text:
    16999.
    Holcomb v. Lang et al.

    Appeal and Error, 4 C. J. p. 579, n. 12.
    Decided May 12, 1926.
    Complaint; from city court of Floyd county—Judge Bale. November 14, 1925.

      Porter & Mebane, for plaintiff in error.

      J. H. Paschall, J. M. Lcmg, contra.
   Luke, J.

It having been made to appear to the court that the issues raised by the bill of exceptions in this case have been settled in full by the parties hereto, and therefore that the question raised is now moot, the writ of error is dismissed.

Writ of error dismissed.

Broyles, O. J., cmd Bloodworth, ■/., concur.


author: Luke, J:

text:
    17019.
    ROOSEVELT MEMORIAL ASSOCIATION v. CLARKE.
    The court erred in refusing to strike the defendant’s exceptions of fact numbered 4 to 10, inclusive.
    References, 34 Cye. p. 861, n. 88, 95; p. 863, n. 2.
    Decided May 12, 1926.
    Rehearing denied June 15, 1926.
    Complaint; from Fulton superior court—Judge Bell. November 16, 1925.
    Application for certiorari was made to the Supreme Court.

      Walter S. Dillon, for plaintiff.

      George & John L. Westmoreland, G. G. Reynolds, Scott & Horn-buckle, for defendant.
   Luke, J:

The - Roosevelt Memorial Association brought suit against E. Y. Clarke, alleging in substance that the association employed Clarke to obtain subscriptions and make collections in Georgia for a fund to be used for the objects and purposes of such association; that Clarke was to be paid $100 per week salary, and “had a right to- incur necessary expenses for carrying on his campaign for funds;” that Clarke was indebted to the association in the sum of $4975.04 and interest thereon, for improper charges made for expenses, and $883.30 for unearned salary, all of which had been paid by the association. The defendant filed general and special demurrers, and an answer denying any and all indebtedness to the plaintiff. The case was referred to an auditor, who, in his findings of law, overruled the general and special demurrers, and overruled all objections to testimony “except where rulings appear of record.” His findings of fact were partly in favor of the plaintiff and partly in favor of the defendant, the aggregate result being a finding in favor of the plaintiff, the Eoosevelt Memorial Association, for the principal sum of $3,094.59, with interest from April 1,-1920.

The defendant filed exceptions to the findings of fact against him, and the plaintiff filed exceptions to the findings of fact against it. The plaintiff made a motion to strike the defendant’s exceptions of fact numbered 4 to 10 inclusive, the motion was overruled by the judge of the superior court, and to that ruling the plaintiff excepts. Upon motion of'counsel for the defendant the judge of the superior court directed a verdict against each and every exception of fact of the plaintiff to the report and the supplemental report of the auditor, and in favor of each and every exception of fact of the defendant to the report and the supplemental report of the auditor; and in pursuance of such verdicts judgments were entered against the plaintiff for costs of court. To the direction of these verdicts and the entering of these judgments the plaintiff excepts.

“In view of the complicated character of cases generally referred to auditors, and the length of the resulting record, there are specially strong reasons for requiring the strictest compHance with the provisions of the statute that all exceptions shall clearly and distinctly specify the errors complained of.” Furthermore, each exception should contain all facts and rulings necessary to show harmful error. It should not be so incomplete as to force the court to search through the record to find either the facts or the error. If the exception sets forth some of the evidence and refers to other evidence contained in the record (without setting it forth or attaching it as an exhibit to the exception) the above-stated provisions oi the statute are not complied with. Hudson v. Hudson, 119 Ga. 637 (10, 11), 642 (46 S. E. 874), and cit. Under this ruling the court erred in denying the plaintiff’s motion to strike the defendant’s exceptions of facts numbered 4 to 10 inclusive. This error rendered the further proceedings in the case nugatory.

Judgment reversed.

Broyles, (J. J., arid Woodworth, J., concur.


author: Bloodwoeth, J.

text:
    17068.
    Thomas v. The State.
    Criminal Law, 17 C. J. p. 271, n. 41.
    Decided May 12, 1926.
    Conviction of possession of liquor; from Clayton superior court —Judge Hutcheson. November 28, 1925.

      C. G. Battle, for plaintiff in error.

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

1. The venue was shown; the court did not err in any of its rulings on the admission of evidence; the trial judge, during the progress of the case, did not express or intimate his opinion as to what had or had not been proved, or as to the guilt of the accused; nor did the court err in recharging the jury.

2. There was evidence to support the verdict, which has the approval of the trial judge, and no error was committed when the motion for a new trial was overruled.

Judgment affirmed.

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


text:
    17078.
    Sloan v. The State.
    Criminal Law, 16 C. J. p. 1146, n. 52; 17 C. J. p. 88, n. 48 New; p. 248, n. 3; p. 252, n. 15; p. 317, n. 10,
   Bloodwoeth, J.

1. “It is well settled by repeated rulings of the Supreme Court and of this court that where evidence is objected to, and the court admits the evidence temporarily, and no subsequent objection is made, or no motion made to rule it out, the admission of the evidence furnishes no ground for a motion for a new trial.” Board of School Commissioners v. Tuggle, 33 Ga. App. 689 (127 S. E. 622). This ruling disposes of the ground of the amendment to the motion for a new trial numbered 5.

2. Error is alleged in allowing in evidence the following: “Did you find any number of guns in the house?” Answer: “Yes, sir.” This ground of the motion will not be considered. To ascertain whether the admission of this evidence was error it would be necessary to refer to the brief of evidence, and this court is not required to do that. Each ground of the motion for a new trial must be complete and understandable within itself. Crawford v. State, 33 Ga. App. 612 (2) (127 S. E. 415); Hogg v. L. & N. Railroad, 33 Ga. App. 774 (127 S. E. 830).

3. Certain evidence was objected to as “hearsay.” This evidence was a part of a conversation, and, when considered in connection with the other evidence, its admission, even if error, was not such a material one as would require the grant of a new trial. See in this connection Penal Code, § 1023; Coleman v. State, 127 Ga. 282 (56 S. E. 417).

1. jí ground of the motion for a new trial alleges misconduct on the part of the officer in charge of the jury during the trial of the accused. Under the counter-showing made by the State, this court can not say as a matter of law that the trial judge abused his discretion in overruling this ground of the motion. Brinkins v. State, 29 Ga. App. 189, 190 (114 S. E. 721), and cit.

Decided May 12, 1926.

Conviction of sale of liquor; from Whitfield superior court— Judge Tarver. November 28, 1925.

George G. Glenn, A. L. Henson, J. M. Lang, for plaintiff in error.

O. G. Pittman, solicitor-general, contra.

5. There was some evidence to support the verdict.

Judgment affirmed.

Broyles, O. J., mid Luke, J., concur.


text:
    17097.
    Cunningham v. The State.
    Intoxicating Liquors. 33 C. J. p. 759, n. 98; p. 777, n. 58.
    Decided May 12, 1926.
    Conviction of possessing and transporting liquor; from Haralson superior court—Judge Irwin. December 21, 1925.

      I. N. Cheney, for plaintiff in error.

      E. 8. Griffith, solicitor-general, contra.
   Luke, J.

1. The defendant was convicted of possessing and transporting intoxicating liquors. The evidence authorized the verdict. The undisputed evidence showed that the car which contained whisky belonged to the defendant’s wife. This evidence, together with the defendant’s presence and actions on the night the liquor car was captured, was sufficient to authorize the jury to find that he was aiding and abetting the driver of the whisky car in possessing and transporting the whisky, and, therefore, was guilty of the offense charged.

2. The grounds of the amendment to the motion' for a new trial show no reversible error.

Judgment affirmed.

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


author: Bloodwokti-i, J.

text:
    17106.
    CARPENTER v. THE STATE.
    The court did not err in overruling tlie extraordinary motion for a new trial, based on alleged newly discovered evidence, the movant having failed to comply with the statutory requirements as to affidavits in support of the motion.
    Criminal Law, 16 C. J. p. 1199, n. 56; p. 1202, n. 70; p. 1230, n. 65, 66, 67, 68, 69; p. 1231, n. 81; p. 1232, n. 83, 85, 90, 91, 93; p. 1233, n. 10; 17 C. J. p. 252, n. 17.
    Decided May 12, 1926.
    Conviction of manslaughter; from Telfair superior court— Judge Graham. October 29, 1925.

      L. G. Harrell, Hal Lawson, for plaintiff in error,
    ilí. H. Boyer, solicitor-general, contra.
   Bloodwokti-i, J.

“Ordinarily, cumulative and impeaching evidence is not ground for a new trial; but when such a motion is made on the ground of newly discovered evidence, it must appear by affidavit of the movant and each of his counsel that they did not know of the existence of such evidence before the trial, and that the same could not have been discovered by the exercise of ordinary diligence. If the newly discovered evidence is that of witnesses, affidavits as to their residence, associates, means of knowledge, character, and credibility must be adduced.” Civil Code, § 6086. “ ‘An affidavit in support of the witness upon whose newly discovered evidence a new trial is sought must give the names of his associates, a statement that he keeps good company not being sufficient to meet this requirement, which is necessary to enable the prosecution to make a counter-showing; and where such affidavit does not comply with this requirement, the trial judge does not abuse his discretion by refusing to grant a new trial on 'this ground.’ Ivy v. State, 154 Ga. 63 (6) (113 S. E. 175). (a) Especially is this true when the motion for a new trial is based solely upon extraordinary grounds, such grounds not being favored by the courts.” Williams v. State, 34 Ga. App. 174 (128 S. E. 589).

This extraordinary motion is based upon alleged newly discovered evidence. In the record there is no affidavit of counsel for plaintiff in error “that they did not know of the existence of such evidence before the trial, and that the same could not have been discovered by the exercise of ordinary diligence,” and no affidavit as to the character and credibility of the witness Harvie Mathis; and the supporting affidavits as to Mitch Eady and Lanier Cauley not measuring up to the requirements of the statute as announced in the foregoing quotation from the decision in the Williams ease, and these being the witnesses upon whose affidavits this extraordinary motion is predicated, it can not be said that the trial judge abused his discretion in overruling the motion. See also Dekle v. State, 160 Ga. 830 (129 S. E. 102); Phillips v. State, 138 Ga. 815 (2) (76 S. E. 352).

Judgment affirmed.

Broyles, G. J., and Lulce, J., concur.


text:
    17108.
    WESTERN & ATLANTIC RAILROAD v. COCA-COLA BOTTLING WORKS.
    1. There was no error of omission or commission in the charge of the court when read in its entirety, and it was in every respect fair to the defendant company. Nor was it error to refuse certain requests to charge.
    2. There was ample evidence to authorize the jury to find that the defendant company was negligent in failing to keep the public crossing properly repaired; that its servants, in the operation of its train, failed to exercise due care in approaching the crossing; that the defendant’s negligence in these respects was the proximate cause of the injury for which suit • was brought; and that the driver of plaintiff’s truck, by the exercise of ordinary care, could not have avoided the consequences of the defendant’s negligence.
    3. The court properly overruled the motion for a new trial.
    Raili'oads, 33 Oye. p. 10S7, n. 38; p. 1088, n. 39; p. 1093, n. 63.
    Trial, 38 Cyc. p. 1518, n. 69; p. 1711, n. 19; p. 1778, n. 73; p. 1779, n. 75, 76.
    Decided May 12, 1926.
    Action for damages; from Whitfield superior court—Judge Tarver. December 13, 1935.

      Tye, Peeples & Tye, Neel & Neal, Maddox, Maddox & Mitchell, for plaintiff in error.

      W. E. & Gordon Mann, contra.
   Luke, J.

Coca-Cola Bottling Works brought suit against Western & Atlantic Railroad for damage to a truck by reason of the defendant company’s train striking the truck at a certáin public crossing. A verdict was rendered for the plaintiff, and, upon defendant’s motion for a new trial being overruled, the case was brought to this court.

As stated in the brief of counsel for the plaintiff in error, “one of the. main insistencies of the defense in this case was that, if there was any negligence on the part of the employees [of the railroad company], the plaintiffs agent, by the exercise of ordinary care, could have avoided the consequences of the negligence and the injury.” All the special grounds of the motion for a new trial are directed against the charge of the court. We have carefully reviewed the court’s charge, and we find that when read in its entirety it is in every respect fair to the defendant company, and fully presented to the jury the law relative to the contentions of the defendant. The court charged the jury that “No matter what the negligence of the defendant or its employees may have been, if the driver of the truck, by the exercise of ordinary care for its safety, could have avoided the consequences of the defendant’s negligence, the plaintiff is not entitled to recover.” The court charged this principle of law eight times, and it was certainly sufficiently impressed upon the minds of the jury. The court charged fully upon the degree of diligence that must be exercised by one on a public road appro'aehing a railroad crossing, and further charged that it must appear that any act or omission on the part of the railroad company “was a negligent act, and that the injury or damage sustained by plaintiffs automobile truck was received as the proximate result thereof.”

There was ample evidence to show that the railroad company was negligent in not having its track filled in properly at this public crossing. Indeed, one of defendant’s witnesses testified that-the defendant company had been working on the crossing and left it in an incomplete state, sajnng, we “wasn’t done work on it. We did not want to leave it in that incomplete way, we were going to complete it. . . We did fix it afterwards.” There was evidence to show that the space between the rails at this public crossing was unusually and unnecessarily low, and that in this space were loose rocks; that the front wheels of the plaintiff’s truck mounted the rail, dropped down between the rails in these loose rocks, stalled momentarily, and was hit by defendant’s train before it could pull out. Defendant’s witness testified: “When he [the driver of plaintiffs truck] got on the main line, looked like his car was killed or something, and he sort of went hack. . . It seemed to roll back a little piece, and about the time it started the other way we hit it.” There was also evidence that two Ford cars had stalled on this same public crossing just the day before this- truck was hit, and that the crossing was in a dangerous condition.

Furthermore, the jury were authorized to conclude, from the evidence, that the servants of the defendant company failed to exercise due care in approaching the public crossing. A witness for the defendant testified: “The track is straight north of the crossing for a distance of 792 feet. . . The engineer could see a man approaching it after he gets around the curve on the straight, about 792 feet. If a truck was approaching that crossing when he was at that point he could see it approaching 792 feet. It is straight from the crossing that distance. . . There was nothing to obstruct the view if he had teen keeping a lookout down that way.” The credibility of this evidence was a matter within the province of the jury. From this evidence they could have concluded that whether the truck was approaching the crossing or was on the crossing, the engineer and the fireman could have seen it 792 feet before they got to it, if they had been keeping a lookout; and other evidence shows that the train could have been stopped in 220 feet.

There is sufficient foundation for the finding that the negligence of the defendant company in failing to keep in proper repair its track at the public crossing, and in failing to exercise due care in approaching the public crossing, was the proximate cause of the injury.

There was also evidence to show that the driver of plaintiffs truck could not, by the exercise of ordinary care, have avoided the consequences of defendant’s negligence. According to the testimony he could not have seen the condition of this public crossing until he was practically right upon it. The dirt road along which he was traveling ran parallel with the railroad and was very much lower than the railroad, some of the evidence showing as much as 20 feet lower. Just before crossing the railroad track where the injury occurred, he had to make a sharp turn and go up a steep incline, on the top of which was the defective public crossing. This gave him no opportunity to detect its dangerous condition until he was right upon it. These peculiar physical conditions, with which the defendant company was necessarily familiar, made a defective public crossing at this point all the more dangerous. There was also some evidence to show that, the noise made by the truck, and the fact that the truck, before making the sharp turn to go up the incline, was considerably below the railroad track, prevented the driver of the truck from knowing of the approach of the train.

The court properly overruled the motion for a new trial. See Civil Code, § 2673; Ga. R. &c. Co. v. Wallis, 29 Ga. App. 706 (116 S. E. 883); Ga. R. &c. Co. v. Ralston, 29 Ga. App. 720 (116 S. E. 891); Davis v. Whitcomb, 30 Ga. App. 497 (118 S. E. 488).

Judgment affirmed.

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


author: Luke, J. Bloodworth, J.,

text:
    17109.
    WESTERN & ATLANTIC RAILROAD v. HENDERSON et al.

    The excerpt from the charge of the court, set forth in ground 10 of the motion for a new trial, was error, and requires another hearing of the case.
    Appeal and Error, 4 G. J. p. 866, n. 52.
    Workmen’s Compensation Acts, C. J. p. 141, n. 10 New.
    Decided May 12, 1926.
    Rehearing denied June 15, 1926.
    Damages; from Whitfield superior court—Judge Tarver. December 12, 1925.

      Tye, Peeples & Tye, Sam. P. Maddox, and Neel & Neel, for plaintiff in error.

      W. E. & Gordon Mann, J. A. McFarland, contra.
   Luke, J.

Mrs. Mary Henderson sued the Western & Atlantic Eailroad for the homicide of her husband, who was killed at a railroad crossing while driving an automobile used for trucking purposes. She alleged that the crossing was in an unsafe condition, and that the train crew were negligent in the operation of the train; that her husband was in the exercise of ordinary care for his own safety, and that his death was the result of the negligence of the railroad company. The railroad company denied the allegations of negligence and insisted that the direct and proximate cause of the death of plaintiff’s husband was his own lack of ordinary care and prudence, etc.

The plaintiff’s husband was in the employ of a Coca-Cola Bottling Company at the time of his injury. Compensation had been allowed her by the industrial commission under, the workmen’s compensation act, in a sum aggregating approximately $4,000. The Maryland Casualty Company had a contract of insurance with the Coca-Cola Bottling Company, whereby it became liable to the plaintiff for the award made under the workmen’s compensation act. The insurance company intervened, without objection, as party plaintiff, praying subrogation up to the amount for which it had become liable under its contract of insurance, by reason of the award made under the workmen’s compensation act. The jury returned a verdict in favor of the plaintiff for $10,000, and in favor of the Maryland Casualty Company upon its intervention. A motion for a-new trial was overruled.

The evidence is in conflict, but we can not say that the jury were not authorized to find from the evidence a verdict in favoi; of the plaintiff; and if the sole assignment of error were as to the sufficiency of the evidence, the case would fall within the rule that, where there is some evidence to authorize a verdict approved by the trial judge, this court is by law powerless to interfere.

The criticism of the court’s charge and of the refusal to charge, as set out in special grounds 4, 5, 6, 7, 8, and 9, when the charge ■ of the court is read in its entirety, is without merit. Indeed, the charge of the court as a whole was most fair and gave to the defendant the benefit of its every contention and legal right. The charge was not confusing or misleading, as we view it, certainly not for any reason pointed out. The 10th ground of the motion for a new trial attacks the legality of the trial for the following reason: “Upon the trial of said case, after the court had charged the jurjr, the jury retired to its room for consideration of the case and remained in its room for several hours, and then returned to the court-room, when the following occurred: Court: ‘Mr. Foreman and gentlemen, I am informed by the bailiff that you desire some further instruction with reference to some part of the case or the issues involved.’ Foreman: ‘Yes, Judge. In regard to the insurance companjr, we don’t understand how that could get into this case, how we are to deal with it.’ Court: ‘The claim of the intervenor, Maryland Casualty Company, should not in any way affect your verdict as between the plaintiff and the defendant. If you find in favor of the defendant, you will not be concerned in any way with the claim of the intervenor. In the event, however, you should return a verdict for the plaintiff for any amount, it will be your duty to add to that verdict these words: “and we further find for the intervenor, the Maryland Casualty Company.” I charge you, as a matter of law, if you find a verdict for any amount for the plaintiff, it would be your duty to. add to that verdict this • finding in favor of the intervenor; which means that the recovery in favor of the plaintiff, if there be one, will be subrogated to the claim of the intervenor, for such amount as it may have expended, or may hereafter expend, in discharging its contract with the Coca-Cola Bottling Company for the payment of such amounts as the Coca-Cola Bottling Company might have become liable for its employee under the Georgia workmen’s compensation act. If you do not understand that in full, if any member of the jury desires to ask me any question about it, he may do so, and I will endeavor to answer it so as to make it clear to you.’ Juror: ‘If we should give a verdict for so much, then the insurance company should be added on?’ Court: ‘Yes, the insurance company, under the undisputed facts in this case and under the law, if you find a verdict in favor of the plaintiff, will be entitled to be subrogated to the rights of the plaintiff to such money as may be derived under the verdict, to the extent of what it has paid out, or may hereafter pay out, in the discharge of its contract with the Coca-Cola Bottling Company. In other words, the Coca-Cola Bottling Company had a contract with the Maryland Casualty Company whereby the Maryland Casualty Company should pay such amounts as it, the Coca-Cola Bottling Company, might become liable for under the Georgia workmen’s compensation act; arid it is undisputed here that the Coca-Cola Bottling Company became liable on account of the death of the plaintiff’s husband to pay $12.75 for 300 weeks, aggregating $3825, and $100 burial expenses, the total aggregating $3925, to the plaintiff in this case, the widow of the deceased. In the event she recovers in this case, her recovery will be subject to the claim of the insurance company, it to be reimbursed out of this recovery, for such amount as it may have expended, or may hereafter expend, in satisfying its liability under this contract of insurance with the Coca-Cola Bottling Company.’ Foreman: ‘I think we understand it now.’ Court:' ‘Then you may retire.’ ” It is insisted that the judge’s answer, “yes,” immediately after the juror asked the question, “If we should give a verdict for so much, then the insurance company should be added on?,” was confusing and misleading, in that the jury were likely led to believe that to such verdict as they might find, if they found .in favor of the plaintiff, should be added the sum that the Maryland Casualty Company, which was a party plaintiff by reason of its intervention, had become liable for upon the award of the industrial commission. When the whole question is considered, we are led to the conclusion that the question asked by the juror was for the purpose of determining whether the verdict, if the jury found in favor of the plaintiff, should be increased by adding to it the amount for which the insurance company had become liable by reason of its contract of insurance. We fear that the answer given by the judge created such an impression upon the mind of the jury as to lead them to believe that the court meant to instruct them that the jury should increase the verdict, if for the plaintiff, so as to reimburse the intervenor. For this reason, and for this reason alone, w.e think that the court erred in overruling the motion for a new trial.

Judgment reversed.

Broyles, G. J., concurs. Bloodworíh, J., dissents.

Bloodworth, J.,

dissenting. Unlike my associates, I am not “led to the conclusion that the question asked by the juror was for the purpose of determining whether the verdict, if the jury found in favor of the plaintiff, should be increased by adding to it the amount for which the insurance company had become liable by reason of its contract of insurance.” Nor do I agree with them in the “fear that the answer given by the judge created such an impression upon the mind of the jury as to lead them to believe that the court meant to instruct them that the jury should increase the verdict, if for the plaintiff, so as to reimburse the intervenor.” Without objection the Maryland Casualty Company had been made a party to the cause. When the jury asked for further instructions the judge told them that “the claim of the intervenor, Maryland Casualty Company, should not in any way affect your verdict as between the plaintiff and the defendant. If you find in favor of the defendant, you will not be concerned in any way with the claim of the intervenor. In the event; however, you should return a verdict for the plaintiff for any amount, it will be your duty to add-to that verdict these words: ‘and we further find for the intervenor, the Maryland Casualty Company.’ ” (Italics mine.) In further instructing the jury, as shown in the majority opinion, the judge again told them: “It would be your duty to add to that verdict this finding in favor of the intervenor.” (Italics mine.) After the above and other instructions were given, a juror asked: “If we should give a verdict for so much, then the insurance company should be added on?” (Italics mine.) The judge replied, “yes,” and proceeded to further instruct the jury as shown in the majority opinion. I am convinced that when the juror asked, “If we should give a verdict for so much, then the insurance company should be added on?” and the court said “yes,” the jury could have understood the judge to mean nothing more than what he said, to wit, “In the event, however, you should return a verdict for the plaintiff for any amount, it will be your duty to add to that verdict these words: ‘We further find for the intervenor, the Maryland Casualty Company.’ ” (Italics mine.) There was no suggestion on the part of the judge that in the event the jury found for the plaintiff they should add any amount of recovery to their verdict. The jury complied with the instructions given them.


text:
    17116.
    Anderson v. The State.
    Criminal Law, 17 O. J. p. 271, n. 41.
    Decided May 12, 1926.
    Conviction of possession of liquor; from city court of Keidsville —Judge Cowart. December 14, 1925.
    The special ground referred to in the decision is as follows: “4. She [the defendant] says that at the end of the charge of the court her counsel orally requested the court to charge the jury that under the law of this State when the husband and wife is living together in the same house and occupying the same bedroom that the husband is presumed to be in possession of all things in the house and the said bedroom, and her counsel made this request because he had listened at the charge and had not heard the above principle of law given to the jury, and the court replied that he had already covered that point in his charge to the jury by charging that husband was head of the family and presumed to be in possession, and declined to charge on-that point any further. This amendment is offered because the court reporter that reported the case is unable to read her notes on the charge and can not write out the charge, and this defendant desires that the record in this case should show that the above principle of law was charged to the jury, and she desires this to appear, for she contends that the verdict was contrary to the charge of the court.”
   Bloodworth, J.

There is no merit in the special ground of the motion for a new trial, and this court will not say that there is no evidence to support the verdict.

Judgment affirmed.

Broyles, O. J., and Lulce, J., concur.

H. II. Elders, for plaintiff in error. M. 17. Eason, solicitor, contra.


text:
    17134.
    HOME INSURANCE COMPANY v. SWANN.
    A written application for fire-insurance, duly signed by the applicant, and providing that “This company shall not be bound by any act done or statement made by or to any agent, or other person, which is not contained in this, my application,” can not, in the absence of proof of fraud, accident, or mistake, be varied or added to by testimony of the applicant as to an oral agreement between him and the insurer’s agent.
    Evidence, 22 C. J. p. 1256, n. 68.
    Decided May 12, 1926.
    Complaint; from city court of Blakely—Judge Sheffield. January 18, 1926.

      Lowrey Slone, for plaintiff. G. L. Glessner, for defendant.
   Luke, J.

The Home Insurance Company of New York sued J. W. Swann upon his promissory note, the consideration of which was two insurance policies, one fire and the other storm. This court held that two defenses to the suit were good as against general demurrer (Home Ins. Co. v. Swann, 34 Ga. App. 19, 128 S. E. 70), and a trial was had upon those two defenses. The jury found for the defendant, and the company excepted.

The defendant pleaded that he signed the note given for the policy “upon the express understanding and agreement with . .. Tarver, as the agent of the plaintiff, that said note should be forthwith returned to this defendant, in the event said company did not accept said application for insurance and issue and deliver to the defendant a policy of insurance covering said property in the respective amounts aforesaid.” No special demurrer to the plea was filed at any time, but the plaintiff objected when the following testimony of the defendant was offered to prove it: “Tarver at the time agreed to have the policies of insurance applied for issued and delivered to me, if the application was accepted by the company. It was agreed at the time, between'Tarver and myself, that if the company did not accept the application, my notes were to be returned to me.” The plaintiff objected to this evidence because, without proof of fraud or mistake, it would vary, add to, and modify the written application of insurance signed by the applicant, which contains the following provision: “This company shall not be bound by any act or statement made by or to any agent, or other person, which is not contained in this, my application.” Neither the premium note, nor the application, nor the policies provided that the policies should be delivered to the applicant. They were all entirely silent as to delivery. A full statement of the pleadings may be seen in the report of the case in 34 Ga. App. 19 (128 S. E. 70). In view of the fact that another trial of this case is likely to be had, we shall content ourselves with saying that in our opinion the jury could have decided the issue either way, and that, since the evidence never demanded the verdict for defendant, it is extremely probable that the allowance of the said testimony was harmful to the plaintiff’s ease. The objection was well taken, and the admission of said testimony was reversible error.

Judgment reversed.

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


text:
    17135.
    HOME INSURANCE COMPANY v. CLINKSCALES.
    In this case no sort of delivery was required by the contract, the evidence demanded a finding that there was a constructive delivery of the insurance policies to the applicant, and the verdict for defendant is without evidence to support it.
    Insurance, 32 O. J. p. 1123, n. 99; p. 1124, n. 1.
    Life Insurance, 37 O. J. p. 636, n. 24, 25.
    Decided May 12, 1926.
    Description of case, and counsel, the same as in the next preceding ease.
   Luke, J.

The Home Insurance Company of New York sued A. J. Clinkscales on a note given for two insurance policies, one indemnifying him against loss or damage by fire, and the other against loss or damage by storms. Defendant admitted a prima facie case, assumed the burden of proof, and the jury found in his favor. The company excepted. The pleadipg in this case has already been passed upon. See Home Ins. Co. v. Clinkscales, 34 Ga. App. 27 (128 S. E. 73), where it was held that one of the defendant’s pleas was good as against general demurrer. Upon this plea the case was tried. The plea was in substance as follows: The only consideration for defendant’s signing the note declared upon was an undertaking on the part of plaintiff to issue and deliver to him (defendant) a policy of fire-insurance, “he having signed an application for such policy, and having at the same time delivered in advance to the company’s soliciting agent, J. B. Tarver, the note sued on, relying on said agent’s assurance to him, at the time, that said note would be returned to defendant in the event said company did not approve said application and issue and deliver to him said policy of fire-insurance. No policy of insurance of any kind was thereafter ever issued by said company and delivered to defendant in person, or to any one authorized to accept the same for him or in his behalf; and this defendant has in no way ever received any benefit from said company, by way of fire protection or otherwise, for his having executed said note.” The application, which was signed by defendant, provided that the company should not be bound by “any act done or statement made by or to any agent, or other person, which is not contained in this, my application.” Each policy of insurance contained the following stipulation: “This policy is valid only when signed by J. B. Tarver, agent, Blakely, 6a.” The premium note, the application, and the policies were all entirely silent regarding any requirement as to delivery of the policies.

Clinkscales testified substantially as follows: The application for insurance was taken on or about April 20, 1922. At that time he turned over to Tarver two notes, one payable to Tarver’s order, and the other the note sued on. The only «consideration for his signing the notes was the insurance applied for in the application. Afterwards he heard no more of the matter, and was never advised that his application had been accepted, or that policies of insurance were issued thereon. He made no inquiry about the matter. The note payable to Tarver, and which fell due in the fall, was traded to the First National Bank of Blakely. When this note became due the bank notified him. At the time the application was given and the notes signed, nothing was said respecting the delivery of the policies of insurance. No policy was ever delivered to witness or to any agent of his. He had previously taken out a policy of insurance in another company for which Tarver was agent, with a loss clause in favor of Forman & Co., of Chicago, and Tarver had, by the defendant’s direction, sent the policy to that company. At the time he paid the note payable to Tarver, at the bank, he thought he had insurance based upon this application. He had never seen the policies, and thought they had probably been sent to Forman & Co., who held a security deed to the land on which the buildings described in the application were located. After he had filed his answer in this case, he learned that the policies had not been sent to Forman & Co., and thereupon he filed an amendment to his original answer. He signed the application, and could read. J. B. Tarver, sworn as a witness for the plaintiff, testified in substance as follows: He and one Cooper, both agents of the company, took the application for insurance. Tarver had authority only to take applications and notes and transmit them to the company’s home office for acceptance or rejection. He had no authority as agent for the company, to use his judgment or discretion in any way. The property insured was inspected and approved by Cooper, who was a special agent of the company. Witness mailed the application and the note to the home office of the company. He “used” the note made payable to him, at the bank, deducted his commission, and remitted the balance oJE the proceeds to the company in payment of the first installment of premium. The note was negotiated to the bank before its maturity. About ton days after the application and the note sued on were sent to the company it sent to him through the mail the policies applied for. Each policy was signed by the company by and through its duly authorized officers, and each was countersigned by the witness on the day of their arrival at Blakely. Defendant could have .gotten said policies at any time after the witness received and countersigned them, by calling at his office and asking for them. There was never any understanding or agreement between the defendant and Cooper or Tarver about delivering the policies to the applicant. The witness never notified the defendant that the policies had been issued, or that he held them for him. After the witness signed the policies no entries had to be made by him on any book.

The allegation in the plea, as to Tarver’s assurance to the defendant that his note would be returned to him “in the event the company did not approve said application and issue and deliver to him said policy of fire insurance,” need not be considered, since it is not sustained by the evidence. In the absence of any stipulation in the premium note, the application, or the policies, requiring delivery of any sort, actual delivery of the policies was not necessary. N. Y. Ins. Co. v. Babcock, 104 Ga. 67 (2) (30 S. E. 273). Nor,, indeed, would constructive delivery necessarily be the only jnanner of proving the consummation of the contract, if it could be otherwise shown. The ultimate question is, was the application accepted, did the minds of the contracting parties meet, was the insurance in effect.? There is no dispute as to the proper issuance of the policies and of their timely reception by the soliciting agent, and their being countersigned by that agent. The policies were promptly mailed to the local agent, but not unconditionally, for the reason that they, had to be countersigned by the agent. Such mailing was not a delivery to defendant. But the policies were complete in every respect when they were promptly countersigned by the agent. . How did the ease then stand? Did the agent’s failure, to, call the .defendant’s attention to the fact that the policies.had been issued and were in his possession defeat the contract? 'We think not. Defendant had paid the first installment of his premium without making any inquiry as to the policy.' True, he testified that he did this under a misapprehension, but there appears to have been no satisfactory reason for such misapprehension. The policy that confused him was in a different company, and of a different date from those we are considering, and inquiry of the bank, or of Tarver, or of the company, or examination of the note upon which payment was made, would have most likely enlightened defendant in this regard. Defendant never at any time made inquiry about the policy, either of the company or of the local agent; nor did he request that the policy be delivered to him. Did the fact that the local agent had to sign the policies show that he had the right of finally deciding whether or not defendant’s application should be accepted? It would seem that he could have prevented the consummation of the contract, by not signing the policies, but he had signed them both, and there is nothing to indicate that anything further had to- be done to bind the company. The agent swore that he had no discretionary power.' Under the ruling in the Babcoch case, supra, the company was bound, and under the facts of this case we see no reason why tl’ie defendant was not bound.

It is urged that this case is controlled by the decision in Reserve Loan Life Ins. Co. v. Phillips, 156 Ga. 372 (119 S. E. 315). In that case suit was brought upon a life-insurance policy. The application provided that the policy should not take effect unless the insured was alive and in good health at the time of the delivery of the policy. The policy was mailed to the company’s general agent at Valdosta on May 20, 1919. The insured was accidentally killed on the morning of May 21. The policy reached Valdosta during the night of May 21, and was taken from the post-office by the company’s general agent on May 22. Shortly thereafter the policy was delivered to the soliciting agent to be transmitted to the insured. Along with the policy there was mailed from the home office a form of receipt to be signed by the insured, at the bottom of which appeared the following words: “Agent must have-in-' sured sign this receipt upon delivery of the policy, and return to home office at once.” Clearly the company did not intend to. accept the application and deliver the policy until the applicant had signed the receipt. This he could not do, because he was dead. The facts in the Phillips case differentiate it from the case at bar, and likewise from the Babcoch case, which it cites approvingly. The judgment in the case we are considering is reversed upon the principle enunciated in the Babcock case.

Judgment reversed.

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


author: Bloodwoetii, J.

text:
    17142.
    Hutto v. The State.
    Criminal Law,'16 C. J. p. 765, n. 60.
    Decided May 12, 1926.
    Conviction of larceny from person; from Houston superior court —Judge Mathews. January 2, 1926.

      M. Kunz, for plaintiff in error.

      Citarles H. Garrett, solicitor-general, contra.
   Bloodwoetii, J.

1. There is no merit in either of the special grounds of the motion for a new trial, or in any of the assignments of error in the bill of exceptions.

2. The evidence is ample to support the verdict. Although circumstantial, it is sufficient to exclude every reasonable hypothesis save that of the guilt of the accused.

Judgment affirmed.

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


text:
    17155.
    NELSON v. THE STATE.
    Refusal to grant a new trial because of alleged newly discovered evidence was not error, the movant failing to comply with section 6086 of the Civil Code (1910) as to supporting affidavits.
    There being evidence to support the verdict, this court will not disturb the conviction. _
    Criminal Law, 16 C. J. p. 922, n. 3; p. 929, n. 86; p¿ 930, n. 93; p. 1230, n. 65, 66, 67, 68, 69, 70, 73; 17 C. J. p. 254, n. 51; p. 255, n. 52; p. 256, n. 61; p. 267, n. 99.
    Decided May 12, 1926.
    Conviction of manufacture of liquor; from city court of Alma —Judge Tuten. January 9, 1926.

      B. B. Chastain, for plaintiff in error.

      C. A. Williams, solicitor, contra.
   Bloodworth, J.

1. The trial judge did not abuse his' discretion in refusing to grant a new trial on account of alleged newly discovered evidence. Plaintiff in error failed to comply with the provisions of section 6086 of the Civil Code of 1910. See Carpenter v. State, 35 Ga. App. 346 (133 S. E. 350).

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

Judgment affirmed.

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


text:
    17170.
    CARSON v. THE STATE.
    A verdict supported by any evidence and approved by tbe trial judge can not be disturbed by this court because of alleged insufficiency of evidence.
    Criminal Law, 17 C. J. p. 271, n. 41.
    Decided May 12, 1926.
    Manslaughter; from Cobb superior court—Judge Blair. January, 9, 1926.

      Lindley W. Camp, John T. Dorsey, for plaintiff in error. •

      John S. Wood, solicitor-general, contra.
   Bloodworth, J.

The motion for a new trial contains the gen-

eral grounds only. There is some evidence to support the verdict, and “whenever there is any evidence, however slight, to support a verdict which has been approved by the trial judge, this court is absolutely without authority to control the judgment of the trial court.” Bradham v. State, 21 Ga. App. 510 (94 S. E. 618).

Judgment affirmed.

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


author: Bloodwortii, J.

text:
    17180.
    SMITH v. THE STATE.
    The alleged forged order set out in the indictment sufficiently indicated that the articles mentioned therein were of value.
    Forgery, 26 C. J. p. 947, n. 76 New.
    Decided May 12, 1926.
    Indictment for forgery; from Pulton superior court—Judge Humphries. January 16, 1926.
    Application for certiorari was denied by the (Supreme Court.

      Louis Ii. Foster, for plaintiff in error.

      John A. Boylcin, solicitor-general, J. W. LeOraw, contra.
   Bloodwortii, J.

Plaintiff in' error was charged with forgery. The special presentment alleged that the accused did procure Jack Bowles to utter and publish as true an order for goods, in part as follows: “City purchasing order. Date 7-19-23. Kindly deliver to bearer and charge to our account 2 No. 3 snubbers 2 No. 4 snubbers for Hudson 1917. Walker. Notice: Invoice or memo, bill showing price charged must accompany goods,” well knowing at the time he so procured Jack Bowles to pass it as true that it had been wrongfully, falsely, and fraudulently forged as herein-before set forth. As against a motion in arrest of judgment, on the ground that the special presentment failed to allege that the “snubbers” were of any value, under the ruling in Battle v. State, 122 Ga. 575 (50 S. E. 342), this order sufficiently indicated that they were of value. The facts of this case differentiate it from that 'of Johnson v. State, 109 Ga. 268 (34 S. E. 573), relied on by plaintiff in error.

Judgment affirmed.

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


author: Broyles, C. J.

text:
    17181.
    Howard v. Caldwell.
    Appeal and Error, 4 C. J. p. 866, n. 51.
    Bills and Notes, 8 C. J. p. 720, n. 18; p. 789, n. 94.
   Broyles, C. J.

1. In a suit upon a promissory note by a bona fide holder , for value thereof, who 1'eeeived it before it-was due and without notice of any defect or defense, the only permissible defenses by the maker of the note are non est factum; gambling, or immoral and illegal consideration; and fraud in its procurement. Civil Code (1910), § 4286. And “fraud in its procurement” means fraud on the part of the holder of the note in coming into its possession, and not fraud on the part of the payee in procuring its execution. Stubbs v. Fourth National Bank, 12 Ga. App. 539 (4) (77 S. E. 893.), and cit.

Decided May 12, 1926.

Complaint; from city court of Decatur—Judge Daley. January 2, 1926.

Bay & Bay, for plaintiff in error. Union S. James, contra.

2. Under the above-stated ruling and the facts of the instant case, the controlling questions upon the trial were whether the plaintiff was a bona fide holder for value of the note sued upon, and whether she received it without notice of any defect or defense. As to these questions there was an acute conflict in the evidence, but the jury, as was their right, decided them in favor of the plaintiff, and their verdict has been approved by the trial judge. None of the grounds of the amendment to the motion for a new trial show cause for a reversal of the judgment below.

Judgment affirmed.

Luke and Bloochoorth, JJ., eoneur.


author: Duke, J.

text:
    17182.
    Burnett v. McDaniel & Company.
    Appeal and Error, 4 C. J. p. 269, n. 13; p. 279, n. 83 New; p. 570, n. 93.
    Decided May 12, 1926.
    Trover; from Haralson superior court—Judge Irwin. November 13, 1925.

      Claude V. Driver, for plaintiff in error.

      J. 8. Edwards, Price Edwards, contra.
   Duke, J.

1. It appearing that the bill of exceptions was not presented to the trial judge for approval within the time allowed by law, the motion to dismiss the writ of error must prevail.

2. Section 4864 of the Civil Code (1910), as to the duty of the trial judge to notify counsel of the overruling of a motion for a new trial, is directory only, “and will not suffice, when considered in connection with Civil Code § 6152, to extend the time prescribed therein for presenting bills of exception for approval.” Columbia Fire Ins. Co. v. Sams, 141 Ga. 641 (81 S. E. 856); Wright v. Moon, 30 Ga. App. 87 (116 S. E. 545).

Writ of error dismissed.

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


author: Bboyles, C. J.

text:
    17184.
    Solomon v. Woodruff.
    Trial, 38 Cyc. p. 1563, n. 68.
    Decided May 12, 1926.
    Complaint; from Muscogee superior court—Judge McLaughlin. January 23, 1926.

      Paul Blanchard, for plaintiff. Neill & McGee, for defendant.
   Bboyles, C. J.

Under the facts of the case the direction of a verdict in favor of the defendant was not error for any reason assigned.

Judgment affirmed.

Lulce <md Bloodworth, JJ., ooneur.


text:
    17185.
    Ogle v. The State.
    Criminal Law, 16 C. J. p. 941, n. 60 New.
    Decided May 12, 1926.
    Conviction of assault and battery; from Haralson superior court —Judge Irwin. January 9, 1926.

      Smith & Watson, Walter Matthews, for plaintiff in error.

      E. S. Griffith, solicitor-general, contra.
   Bboyles, C. J.

On the trial of one charged with assault and battery it was error for the court to charge the jury that “if the party assaulted m this ease, Roy Wilkerson, if when he was assaulted he was defending his mother, attempting to defend his mother against an assault that was being made by the wife of the defendant in this ease, or anybody else, he would have a right to defend his mother” (italics ours), this charge (as alleged in the motion for a new trial) being an intimation of an opinion that Roy Wilkerson (the party alleged to have been assaulted) had been assaulted; and this error, under the facts of the case, requires a new trial.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    17186.
    Franklin v. Howell.
    Chattel Mortgages, 11 C. J. p. 592, n. 76 New; p. 619, n. 37 New.
    New Trial, 29 Cyc. p. 832, n. 60.
   Luke, J.

The evidence introduced for the plaintiff showed that he had a valid mortgage-note on three mules to secure a debt due him by the mortgagor for supplies; that the defendant, after reading over the mortgage-note one afternoon, caused the mules to be carried away the same night and conveyed into another State; that foreclosure proceedings were instituted on the mortgage, and a return of nulla bona was made by the levying officer; that the value of the mules exceeded the amount of the debt; that the mortgagor owned nothing except a little corn, and that the mortgage-note was never paid. Held:

Decided May 12, 1926.

Action for damages; from Butts superior court—Judge Persons. January 2, 1926.

H. M. Fletcher, for plaintiff.

G. L. Redman, W. E. Watlcins, for defendant.

1. If one having actual knowledge that another has a mortgage on personal property wilfully conveys the property beyond the limits of this State and destroys the value of the mortgage, he is liable in damages to the mortgagee; and the measure of damages is the value of the property, not exceeding the amount due upon the mortgage. Harris v. Grant, 96 Ga. 211 (23 S. E. 390); DeVaughn v. Harris, 103 Ga. 102 (29 S. E. 613); Reid v. Matthews, 102 Ga. 189 (29 S. E. 173, 66 Am. St. R. 164); Todd v. Hurst Supply Co., 17 Ga. App. 98 (86 S. E. 255).

2. The defendant offered no evidence, there was no evidence to support the verdict for him, and the court erred in refusing to grant a new trial.

Judgment reversed.

Broyles, G. J., cmd Bloodworth, J., concur.


author: Brotles, C. J.

text:
    17188.
    Reese v. Southern Railway Company.
    Negligence, 29 Cyc. p. 578, n. 73.
    Pleading, 31 Cyc. p. 78, n. 95; p. 83, n. 16; p. 85, n. 38.
    Decided May 12, 1926.
    Action for damages; from Haralson superior court—Judge Irwin. January 6, 1926.
    The action was for injuries received on falling from a step of a passenger-car of the defendant’s train on which the plaintiff had taken passage to Bremen, Georgia. The petition alleges: “Petitioner was asleep when said train reached Bremen, Georgia, petitioner’s destination. Petitioner awoke just as said train was leaving said station . . before said train had moved more than the length of an ordinary passenger-car and while said train was moving at a speed not exceeding four miles an hour. When petitioner awoke he thought said train was approaching said station, and in fact it was departing therefrom. In anticipation of alighting therefrom petitioner arose from the seat he was occupying and proceeded to the rear platform of the car in which he was riding, the same being commonly known as the smoking-car. As petitioner walked down the steps from the platform of said car he perceived that said train was departing from Bremen. Petitioner, being a young man, forty years of age, in perfect health and very active and agile, and as said train at this particular time was traveling at a very reasonable rate of speed,' not exceeding eight or ten miles per hour, undertook to ascertain whether or not it would be safe to alight from said train. Both the car on which petitioner was riding and the one immediately in its rear were vestibule cars, and at this time the vestibule door on the rear of the car where petitioner was and on the left side of the car in which petitioner was riding as said train approached Atlanta, Georgia, was open, and petitioner caught hold of the hand-railing of said car, placing his right foot either on the bottom step or the one just above it, while his left foot was on the step immediately behind and above the one his right foot was on, with his right shoulder pressed against the end of the car he was standing on, and looked down to see if he could find a safe landing. Just as petitioner decided it would not be safe for him to alight, and as he endeavored to turn back into said car, intending to go on as a passenger to Villa Eica, a station on defendant’s line where he could catch a bus to Carrollton', there was an unusual and unnecessary drop and jolt in the particular part of said train where petitioner was then located, the same being caused by an unusual,'unnecessary, and dangerous depression which was about 125 or 130 yards from the depot at Bremen, Georgia, in the roadbed and track on the left-hand side of said track in going from Bremen to Atlanta, Georgia, for the reason that at this particular point the ties were rotten, the rails having cut down into them until some of the ties were almost cut off, and the ties and the rails sagged up and down when a train was passing over this point. At the same time the engineer of said train increased the speed of said train, all of which threw petitioner off his balance, jerked his left foot completely off said steps, and threw petitioner’s body violently around until he was facing said steps with only a toe-hold with his right foot and holding on to the outside hand-rail with his right hand, the greater part of his body being suspended in the air outside of a line of said train, making it impossible for petitioner to regain his safety, as a result whereof petitioner did hang on the outside by the hand-rails until his strength was completely exhausted, when he fell from said train at a point which was about one hundred yards from the depression hereinbefore mentioned and while said train was still running and increasing its speed, receiving as a result of the fall divers and sundry wounds and bruises and injuries” described. The petition alleges that the plaintiff was in the exercise of all reasonable and ordinary care and diligence and was free from fault, and that the defendant was negligent in respect to the condition of the ties, etc.
   Brotles, C. J.

1. The petition, properly construed as a. whole and most strongly against the petitioner, clearly shows that the plaintiff, by the exercise of ordinary care, could have avoided the injury sued for.

(a) General allegations in a petition that the plaintiff could not have avoided the consequences of the defendant’s negligence by the exercise of ordinary care must yield, on demurrer, to the particular facts set forth, where inferences from such facts are necessarily to be drawn contradictory of the general allegations. Moore v. Seaboard Air-Line Ry. Co., 30 Ga. App. 466 (4) (118 S. E. 471).

2. Under the above-stated ruling the court did not err in dismissing the suit, on general demurrer.

Judgment affirmed.

Luhe and Bloodworth, JJ., concur.

The judge of the superior court, in his judgment on the demurrer, said: “It appears from the plaintiff’s petition that he was asleep when the train arrived at Bremen, the station to which he purchased a ticket, and that he did not know that the train had arrived at the station until it was pulling out and running at the rate of some four miles per hour, when he was out and got upon the lower steps of the train for the purpose of alighting, and he determined that it would not be safe to alight, and then concluded to go into the train and to another station to alight. It failing to appear that the plaintiff remained on -the train after he passed the station to which he had purchased a ticket with the bona fide intention to pay cash on to another sta-tion and alight, but the allegation being that he went on the steps with the intention of getting off the train, and that when he placed himself in a position of peril he was not a passenger on said train, and it further appearing that his injuries were not the result of wilful or wanton conduct on the part of the defendant, the general demurrer is sustained and the case dismissed.”

Beall & Beall, for plaintiff.

Griffith & Matthews, Maddox, Matthews & Owens, for defendant.