text:
    19537.
    Phillips v. The State.
    Decided April 9, 1929.

      P. Z. Geer, for plaintiff in error. J. A. Drake, solicitor, contra.
   Broyles, C. J.

The evidence authorized the jury to find that the premises upon which the distilling apparatus was found were in the defendant’s possession and under his control. The accused introduced no evidence, and his denial, in his statement to the jury, that the premises were in his possession or under his control was evidently disbelieved by the jury. The verdict was authorized by the evidence, and the refusal to grant a new trial (the motion being based upon the general grounds only) was not error.

Judgment affirmed.

Luke cmd Bloodworth, JJ., concur.


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
    19538.
    Weaver v. The State.
    Decided April 9, 1929.

      P. Z. Geer, for plaintiff in error. J. A. Drake, solicitor, contra.
   Luke, J.

There being evidence that the defendant was drunk on a public highway as alleged in the accusation, this court can not disturb the jury’s verdict finding the defendant guilty, or reverse the judgment of the trial court overruling the motion for a new trial, based solely upon the usual general grounds.

Judgment affirmed.

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


author: Bloodworth, J.

text:
    19544.
    Mungin v. The State.
    Decided April 9, 1929.
   Bloodworth, J.

The special- grounds of the motion for a new trial are but amplifications of the general grounds; there is ample evidence to support the finding of the jury, and the judge who tried the case did not err in overruling the motion for a new trial.

Judgment affirmed.

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

Henry O. Fair, for plaintiff in error.

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


author: Broyles, C. J.

text:
    19548.
    Harris v. The State.
    Decided April 9, 1929.

      F. W. Gilbert, for plaintiff in error.

      Charles H. Calhoun, solicitor, contra.
   Broyles, C. J.

The accused, was convicted of selling whisky. The evidence showed a confession by the defendant that she had sold whisky, but the confession was not corroborated by any other evidence. “A confession alone, uncorroborated by other evidence, will not justify a conviction.” Penal Code (1910), § 1031. It follows that the verdict was unauthorized by the evidence, and that the refusal to grant a new trial was error. Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    19549.
    WARD v. THE STATE.
    Decided April 9, 1929.

      Smith & Mi'llican, I. N. Cheney, for plaintiff in error.

      Fmmeit Smith, solicitor, contra.
   Luke, J.

Ward was charged with violating the following part of the motor-vehicle law (Ga. L. 1927, sec. 12(d), p. 237; Park’s Code Supp. 1927, § 828 (uu-31, subsection d)) : “An operator of a vehicle overtaking another vehicle going in the same direction, and desiring to pass the same, shall pass to the left of the vehicle overtaken, provided that the way ahead is clear of approaching traffic, but if the way is not clear he shall not pass unless the width of the road is sufficient to allow his vehicle to pass to the right of the centre thereof in the direction in which his vehicle is moving.” After charging the foregoing law in the language of the statute, the court read to the jury the remainder of the foregoing section, which is as follows: “provided further, that no operator shall pass a vehicle from the rear at the top of a hill or on a curve where the view ahead is in any way obscured or while the vehicle is crossing an • intersecting highway. An operator overtaking and desiring to pass a vehicle shall blow his horn, and the operator of the vehicle so overtaken shall promptly, upon such signal, turn his vehicle as far as reasonably possible to the right in order to allow free passage on the left of his vehicle.” The defendant excepts to the court's giving in charge to the jury the last-quoted portion of the above section, on the ground that it was not authorized by the pleadings or the evidence, had no application to the case, and was confusing, misleading, and prejudical.

The following rule of law has been held applicable in a civil case: “Although instructions of the court to the jury may state the law correctly, in the abstract, yet if they are not authorized by the evidence in the case, they are erroneous, and, if it is not apparent that the jury could not have been misled by them, are cause for a new trial.” Culberson v. Alabama Construction Co., 137 Ga. 599 (56 S. E. 765, 9 L. R. A. (N. S.) 411, 9 Ann. Cas. 507). In King v. State, 37 Ga. App. 334 (3) (140 S. E. 513), it was said: “There being no allegation in the indictment that the defendant had failed to register with the ordinary as required by law, and there being no evidence of such fact, the same was not an issue to be determined by the jury, and the court's charge on this subject, being calculated to mislead the jury into believing that the defendant had violated this law, was harmful.” See also Yopp v. State, 131 Ga. 593 (63 S. E. 1036).

It is perfectly apparent that the excerpt complained of had no application to the issues raised by the information; and an examination of the brief of evidence discloses that it was not warranted by the evidence. Under these circumstances, and in view of sharp conflicts in the evidence, this court can not say that the jury could not have been misled by the charge.

The judgment in this case is reversed solely because of the error in the charge of 'the court. Since the case is to be tried again, we make no comment upon the evidence adduced at the trial,

tJudgment reversed.

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


text:
    19550.
    Adams v. The State.
    Decided April 9, 1929.

      P. Z. Geer, for plaintiff in error. J. A. Drake, solicitor, contra.
   Bloodworth, J.

The motion for a new trial is based on the general grounds only; the verdict rendered was authorized by the evidence and approved by the trial judge; and this court will not interfere.

Judgment affirmed.

Broyles, O. J,, and Luhe, J., eoneur.


text:
    19551.
    Harper v. The State.
    Decided April 9, 1929.

      P. Z. Geer, for plaintiff in error. J. A. Drake, solicitor, contra. -
   Broyles, C. J.

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

Judgment affirmed.

Luhe and Bloodivorth, JJ., eoneur.


text:
    19552.
    Long v. The State.
    Decided April 9, 1929.

      P. Z, Geer, for plaintiff in error, J. A. Drake, solicitor, contra.
   Luke, J.

There being evidence that after shooting a snake with a pistol, at a place that was not his home or place of business, the defendant put the pistol in his bosom and immediately drove off in a buggy; and there being no evidence, or contention, that he had any license to carry a pistol, this court can not say that his conviction of carrying a pistol without a license was unauthorized by the evidence. It follows that the court did not err in overruling the motion for a new trial, based solely upon the usual general grounds.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., eoneur.


author: Bloodwobth, J.

text:
    19553.
    Miller v. The State.
    Decided April 9, 1929.
    P. Z. Geer, for plaintiff in error. J. A. Brahe, solicitor, contra.
   Bloodwobth, J.

The verdict was authorized by the evidence and approved by the trial judge; and the motion for a new trial, based on the general grounds- only, was properly overruled.

Judgment affirmed.

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


author: Bboyles, C. J.

text:
    19554.
    Sheffield v. The State.
    Decided April 9, 1929.
    P. Z. Geer, for plaintiff in error. J. A. Brahe, solicitor, contra.
   Bboyles, C. J.

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

Judgment affirmed.

Luke and Bloodworlh, JJ.) concur.


text:
    19557.
    Adams v. The State.
    Decided April 9, 1929.
    P. Z. Geer, for plaintiff in error. J. A. Brahe, solicitor, contra.
   Luke, J.

There being evidence that, as alleged in the accusation, which was based on section 504 of the Penal Code (1910), the defendant, between dark and daylight, and within fifty yards of a public highway, and not on his own premises or in defense of person or property, wilfully and wantonly discharged a loaded shotgun, this court can not say that the judge erred in overruling the motion for a new trial, based solely upon the usual general grounds.

Judgment affirmed.

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


text:
    19558.
    DANIEL v. THE STATE.
    Decided April 9, 1929.

      J. G. Newsome, for plaintiff in error.

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

1. Ground 1 of the amendment to the motion for a new trial alleges that the court erred in admitting certain evidence over the objections that it was “irrelevant, and inadmissible.” Such objections are too general, and raise no question for determination by this court. City of Manchester v. Beavers, 38 Ga. App. 338 (3) (144 S. E. 11), and cit.

3. The court charged the jury: “Indirect or circumstantial evidence is that which only tends to establish the issue by proof of various facts sustaining by their consistency the theory or hypothesis claimed. Before you would be authorized to convict on circumstantial evidence alone, the proven facts must not only be consistent with the hypothesis or theory of guilt, but must exclude every other reasonable hypothesis or theory save that of the guilt of the accused.” This is alleged to be error because of the use of the words “theory or” and the words “or theory” where they occur in this part of the charge, as the word "theory” does not appear in the statute (Penal Code (1910), § 1010), and does Dot mean the same thing as “hypothesis.” These errors, if errors they be, are not of such materiality as to require a reversal of the judgment. Citing several cases to support its holding, this court, in McKenzie v. State, 37 Ga. App. 795 (3) (110 S. E. 347), said: “Conceding that there are slight inaccuracies of expression and minor errors in the charge, these are not of such materiality as to require the grant of a new trial. There is nothing in these errors and inaccuracies that would likely mislead the jury and cause them to render a verdict contrary to the facts and the general tenor of the charge, which fully and correctly stated the issues in the case and in such a way as not to be prejudicial to the cause of the defendant.” See Howard v. State, 25 Ga. App. 408 (4) (103 S. E. 683). See also McNaughton v. State, 136 Ga. 611 (71 S. E. 1038).

3. There is no merit in either of the remaining special grounds of the motion for a new trial.

4. The evidence is sufficient to authorize the jury to return a verdict of guilty, and the motion for a new trial was properly overruled.

Judgment affirmed.

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


text:
    19559.
    LONG et al. v. THE STATE.
    Decided April 9, 1929.

      TV. Gordon Mann, D. W. Mitchell, for plaintiff in error.

      John Q. Mitchell, solicitor-general, contra.
   Broyles, C. J.

Long, Bobertson, Ferrell, and Brown were jointly indicted for burglary. The first three were tried together and the jury returned the following verdict: “We, the jury, find the defendants Charlie Long, C. E. Bobertson and Jess Ferrell guilty as accessories to housebreaking and set their sentences 1 year and recommend the-mercy of the court. This 10 day of January, 1929. J. P. Turner, Foreman.” At the same term of court the defendants made a motion to arrest the judgment on the ground “that the record shows in this case that the jury trying said defendants under said indictment charging them with burglary as aforesaid rendered a verdict finding defendants guilty of being accessories to the crime, and the verdict does not state whether they found them guilty as accessories before the fact under section 45 of the Code of Georgia . . or as accessories after the fact under section 47 of the Code of Georgia.” The motion to arrest the judgment was meritorious and the court erred in denying it.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    19561.
    Goodwin v. The State.
    Decided April 9, 1929.

      C. W. Atwill, for plaintiff in error.

      D. D. Smith, solicitor, contra.
   Bloodworth, J.

“In this ease there is no assignment of error upon a final judgment; and, indeed, there is no assignment of error upon the judgment overruling the motion for a new trial. It follows that the writ of error must be dismissed.” Candler Auto Co. v. Evans, 38 Ga. App. 85 (142 S. E. 752).

Writ of error dismissed.

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


text:
    19568.
    Hunt v. The State.
    Decided April 9, 1929.

      Claud Brackett, Frank B. Fling, for plaintiff in error.

      John A. Boykin, solicitor-general, J. W. LeCraw, John H. Hudson, contra.
   Broyles, C. J.

The only assignment of error in the bill of exceptions is upon the overruling of the motion for a new trial, which contained the usual general grounds only. The verdict was authorized by the evidence, and the refusal to grant a new trial was not error.

Judgment affirmed.

Luhe and Bloodworth, JJ., eoneur.


text:
    19576.
    Musick v. The State.
    Decided April 9, 1929.

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

      Fmmetl Smith, solicitor, contra.
   Broyles, C. J.

The evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of the defendant’s guilt, and the special grounds of the motion for a new trial disclose no reversible error. Judgment affirmed.

Luhe and Bloodworth, JJ., concur.


text:
    19587.
    Hayes v. The State.
    Decided April 9, 1929.

      William B. Kent, for plaintiff in error.

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

1. Under repeated rulings of this court and of the Supreme Court, a failure to instruct the jury upon the law of impeachment of witnesses is not error in the absence of a timely written and appropriate request so to charge. In this case a ground of the motion for a new trial refers to a written request to charge on that subject (the request being attached to the ground as exhibit “A”), but the ground is too defective to be considered, since it fails to show that the request was presented to the judge before the jury had retired to consider their verdict.

2. The remaining special grounds of the motion for a new trial (some of which are not complete and understandable within themselves) show no reversible error.

3. The verdict was authorized by the evidence, and, the finding of the jury having been approved by the trial court and no error of law appearing, this court is without authority to interfere with it.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


author: Luke, J. Bloodworth, J.,

text:
    19298.
    CENTRAL OF GEORGIA RAILWAY CO. v. ADAMS.
    Decided April 10, 1929.

      II. Wiley Johnson, for plaintiff in error.

      A. L. Alexander, F. II. O'Connor, contra.
   Luke, J.

The only question for determination is whether or not the court erred in overruling the general demurrer to the petition in this action for damages brought by Aubrey Adams against the Central of Georgia Railway Company. Omitting the formal allegations and those not necessary to a decision upon the question at issue, the petition, in substance, is as follows:

2. The Louisville Road is a main, paved highway extending from the City of Savannah in a westerly direction across Chatham County.

3. About three miles from the city hall of Savannah, two spur-tracks, connecting the defendant’s main line of railroad with the plant of the Eeliance Fertilizer Company, which is located on the south side of said Louisville Eoad, cross said road; said spur-tracks being used for the purpose of transporting freight to and from said plant.

4. Said Louisville Eoad is one of the main highways of the State and is extensively traveled.

5. “At about 2:30 o’clock on the morning of March 13, 1928, petitioner was driving a Buiek coupé automobile along said Louisville Eoad from Savannah toward said spur-tracks crossing said road.”

6. Petitioner was returning alone to his home at Pooler in said State and County, after having spent the earlier part of the evening with friends in Savannah.

7. “That while on his journey petitioner was driving his automobile with care and caution at a speed not exceeding twenty or twenty*-five miles per hour, owing to the fact that the night was intensely dark, foggy, and misty, and the weather inclement.”

8. “That .at about the hour of 2.30 a. m. on said date, while petitioner was proceeding in the careful manner • aforesaid, his machine approached said spur-track crossing; and although the headlights on his machine were burning properly, owing to the said inclement weather condition petitioner did not know, and by the exercise of ordinary care could not have known, that he was in close proximity to said crossing, when in front of him at a distance of about twenty feet, petitioner suddenly beheld a train of about eleven freight-cars crossing the Louisville Eoad at said crossing and totally blocking said crossing, the defendant not having provided any means of warning petitioner that he was approaching said crossing.”

9. “That immediately upon perceiving said freight-cars, petitioner applied the brakes on his automobile and turned to the left, attempting to go down a short road leading to the left; but although said brakes were in good condition, owing to the short distance between said automobile and said freight-cars, and the slippery condition of the road, petitioner was unable to stop said automobile in time, and struck the side of one of said freight-cars with the right front fender of his automobile, thereby throwing the right side of said automobile into violent contact with the side of said freight-car. With such force and violence did said automobile strike said box-car that the fenders and running-board '. . were torn off,” etc. When said automobile came to a stop it was at a point about twenty-five feet from the paved road alongside of said tracks.

10. Because of the serious and numerous injuries to his ear described in the foregoing paragraph, petitioner’s car was damaged in the sum of $820.

11. Petitioner himself was shocked and injured by the collision in specified ways.

12. “Petitioner had no notice whatever that said train of cars was crossing the said road until he was at a distance of about twenty feet from them. There is at said crossing a signboard, which is unlighted, on the western side of the two tracks which constitute the crossing, the said train being on the more eastern track, between petitioner and said signboard, and totally obstructing his view of same. There was no light, bell, watchman, or any other means provided by defendant for apprising petitioner of his approach to said crossing, or that said train was passing over said crossing.”

13. “Said spur-track is not a part of the main-line track of said defendant, and is used only occasionally and at irregular and infrequent intervals for hauling freight to and from the plant of the Eeliance Fertilizer Company.”

14. “Immediately after the collision, the flagman employed by defendant, whose name is unknown to petitioner, came from behind a gate leading into the yard of said fertilizer plant, which is surrounded by a solid board fence about eight feet in height, and located about thirty-five feet from said Louisville Eoad, with a lantern, and another member of the crew of said train, whose name is unknown to petitioner, also came up, and carried petitioner to a small building . . located near the main line tracks, a short distance from the scene of the accident.” It is further alleged that the employees of defendant took petitioner shortly thereafter to the Central of Georgia Hospital.

15. This paragraph relates to the treatment of petitioner at said hospital. Paragraphs 16, 17, 18, and 19 relate to injuries and damages.

20. “At the time of said injury petitioner was in the exercise of all due, ordinary and reasonable care, and was free from fault and negligence.”

21. “The collision between petitioner’s automobile and said freight-train, and the injuries which he sustained thereby, and the damage to his automobile and clothing were due entirely to the negligence of said defendant, as follows, to wit:”

(a) “It failed to have and maintain any light, bell, gong, .or sign, or any signal apparatus which would, by the sounding or the sight thereof, warn persons approaching said crossing of the presence of a train, either standing upon or passing over said crossing.”

(b) '“It failed to have the signboard which was there placed in such a position that any .one approaching said crossing from the east could see it-in time to slow up or stop for said crossing.”

(c) “It failed to provide a red light, or other light, which under the atmospheric conditions then and there existing would penetrate the fog and darkness sufficiently far to give timely warning to persons approaching said crossing.”

(d) “It failed to hail, or otherwise warn, petitioner as he approached said crossing, and thus apprise him of the danger confronting him.”

(e) “The flagman aforesaid, the servant of defendant, whose duty it was to stand in said road with a lighted lantern and warn persons approaching- said crossing, had carelessly and negligently left his post, and was behind the gate leading to the Eeliance Fertilizer Company’s plant, where neither he nor the lantern could be seen by a person approaching said crossing, which negligence of its servant is imputed and chargeable to defendant.”

The demurrer is on the grounds: (1) that the petition does not set out a cause of action, and (2) that “the allegations of the petition show that the injury and damage for which plaintiff sues were caused solely by the negligence or want of ordinary care on the part of the plaintiff.”

In paragraph 19 of the petition it is alleged that the petitioner “was employed as an accountant by the Savannah Gas Company;” and in paragraph 6 it is alleged that “petitioner was returning to his home at Pooler, in said State and county, after having spent the earlier part of the evening with friends in Savannah,”

Construing the petition most strongly against the pleader, it certainly could not be fairly concluded that the petitioner was entirely unfamiliar with the road he was traversing. Aside from this, however, “the night was intensely dark, foggy, and misty,” so much so in fact that the petitioner, with the headlights of his automobile “burning properly,” could not see a train of cars immediately in front of him at a greater distance than “about twenty feet.” Notwithstanding these facts, the petitioner was driving “at a speed not exceeding twenty or twenty-five miles per hour;” the physical facts showing that though he immediately applied good brakes to his automobile and turned to the left, the momentum of the machine was so great that it struck the side of a freight-car with great force and was finally stopped twenty-five feet from the paved road, a complete wreck. Admitting as true only the allegations of fact in the petition, we can not escape the conclusion that the petioner was the author of his own misfortunes, and that the acts of negligence alleged against the defendant did not contribute to or concur with petitioner’s negligence in causing the collision. See, in this connection, Brinson v. Davis, 32 Ga. App. 37 (122 S. E. 643); Eberhart v. Seaboard Air-Line Ry. Co., 34 Ga. App. 49 (129 S. E. 2). The allegations of fact in the case of Central of Georgia Ry. Co. v. Heard, 36 Ga. App. 332 (136 S. E. 533), differentiate it from the case at bar. In our opinion the general demurrer was good, and the court erred in overruling it.

Judgment reversed.

Broyles, C. J., concurs. BloodwoHh, J., dissents.

Bloodworth, J.,

dissenting. In considering whether a petition is good as against a general demurrer the allegations of the petition must be considered as true; and, so considering them in this case, the writer can not say that the petition does not set out a cause of action. The material allegations of the petition are set out in the opinion of the majority of the court. The defendant can not admit all that is alleged in the petition and escape liability. These allegations are of such a character as to require a submission to the jury of the issues raised. In the petition it is alleged that the defendant was negligent in several particulars. In While v. Seaboard Air-Line Railway, 14 Ga. App. 139 (15) (80 S. E. 667), this court held: “Questions of negligence are for the jury alone, and the determination of the proximate gauge is involved in and essential to the ascertainment of what negligence, as well as whose negligence, the injury is properly to be attributed to. A court can no more determine upon an issue as to what particular act or circumstance was the proximate cause of an alleged injury than it can determine that the same particular act was an act of negligence; for the jury might determine that the act which the court held was the proximate cause was not negligence, while they might be of the opinion that an act adjudged not to be the proximate cause of the injury was negligence.” And see Ga. Ry. & Power Co. v. Ryan, 24 Ga. App. 288 (100 S. E. 713); Davis v. Smiley, 33 Ga. App. 508 (2) (126 S. E. 904) ; Howard v. Savannah Electric Co., 140 Ga. 482, 486 (79 S. E. 112). In Term., Ala. & Ga. Ry. Co. v. Neely, 27 Ga. App. 493 (108 S. E. 630), Judge Hill, in discussing certain instructions which the court refused to give to the jury, said: “Such instructions would have been fatally afflicted with two infirmities, and, if given as requested, would have been reversible error. First, it has never been held in this State that it constituted negligence in one approaching a crossing over a railroad track to fail to stop, look, and listen before crossing. To the contrary, see: Bryson v. Southern Ry Co., 3 Ga. App. 407 (3), 409 (59 S. E. 1124) ; Columbus R. Co. v. Peddy, 120 Ga. 589 (5) (48 S. E. 149); Seaboard Air-Line Ry. v. Blackwell, 16 Ga. App. 504 (85 S. E. 686). There are many other decisions both of the Supreme Court and of this court to the same effect. Secondly, the question of negligence in such circumstances is always one for the jury, and, unless the act complained of,as negligence is negligence per se, the trial judge can not instruct the jury as to what facts would constitute negligence. This is an issue to be determined by the jury according to the facts of each particular case, without any assistance from the trial judge. Even if the decedent was negligent in approaching the railroad-crossing, there was evidence that those in charge of the train of the defendant company were also negligent in approaching the crossing, and the jury might well have found from the evidence that the defendant’s negligence exceeded that of the decedent.” Whitcomb v. Payne, 27 Ga. App. 722 (109 S. E. 703); Bryson v. So. Ry. Co., 3 Ga. App. 409 (3) (59 S. E. 1124), and cit.

In the case we are now considering the freight-train, when the injury to the plaintiff occurred, was on a side-track which connected the main line of railroad with the plant of Reliance Fertilizer Company. There was nothing whatever to pnt the- plaintiff on notice, or to canse him to suspect, that a moving freight-train would be thereon at that hour of the night. The petition alleges that “the night was intensely dark, foggy, and misty,” that “the defendant had not provided any means of warning petitioner that he was approaching said crossing,” and that he was in the exercise of due care and free from fault, and did not know of the presence of the said freight-train until he was about twenty feet from it, and that his injuries were due entirely to the negligence of the defendant. The opinion of the majority of the court is based upon the idea that the injury of the plaintiff was caused solely by his “negligence or want of ordinary care.” Under the particular facts of this case, if the plaintiff was negligent at all, he was not negligent in the manner in which he approached the crossing. Until he was within a few feet of the train he knew nothing of its presence'or of the negligence of the defendant; and whether, after the negligence of the defendant came into existence and was known to the plaintiff, he could have avoided the injury was a question of fact for the jury. In Western & Atlantic Railroad Co. v. Ferguson, 113 Ga. 708 (39 S. E. 306, 54 L. R. A. 802), the 2d headnote is as follows: “Failure to exercise ordinary care on the part of the person injured, before the negligence complained of is apparent, or should have been reasonably apprehended, will not preclude a recovery, but will authorize the jury to diminish the damages in proportion to the fault attributable to the person injured.” Bullard v. Southern Railway Co., 116 Ga. 644 (3) (43 S. E. 39). In Williams v. Southern Railway Co., 126 Ga. 7.10 (55 S. E. 948), Justice Atkinson said: “If, after the negligence of the defendant commenced, the deceased became aware thereof, or by the exercise of ordinary care should have become aware thereof, and then and thereafter failed to exercise ordinary and reasonable care and diligence for his own safety, there could be no recovery. The deceased’s want of ordinary care is a question for the jury, concerning which they are exclusive judges, just as they are concerning the negligence of the defendant. It was for the jury to say, under the particular circumstances of this case, at what time the negligence of the defendant began. When did the deceased know of it ? Or when did its existence become apparent so that, under the particular attendant conditions, the deceased, by the exercise of ordinary care, should have known of its existence.” Central of Ga. Ry. Co. v. Barnett, 35 Ga. App. 528 (15) (134 S. E. 126). When can a demurrer to a petition be properly sustained? In Savannah Electric & Power Co. v. Nance, 31 Ga. App. 632 (121 S. E. 690), it was held: “Questions as to diligence and negligence, including contributory negligence and what constitutes the proximate cause of the injury, are questions peculiarly for the jury such as this court will decline to solve on demurrer except where such questions appear palpably clear.” In the instant case such questions do not appear “palpably clear.” “Except where a particular act is declared to be negligence, either by statute or by a valid municipal ordinance, ‘the trial judge should not tell the jury what acts would constitute negligence, and what would not, but should instruct them as to the proper measure of diligence, and leave them to determine, in view of all the evidence bearing on the subject of the time, place, circumstances, and happenings, whether there was or was not a want of due cared” Davis v. Whitcomb, 30 Ga. App. 497 (2) (118 S. E. 488), and cit. The facts in the case of Central of Ga. Ry. Co. v. Heard, 36 Ga. App. 332 (136 S. E. 533), are quite similar to the facts of the instant case. Citing a number of cases to support the position taken, the headnote of the decision in that case says: “It can not be said, as a matter of law, that the petition failed to show negligence by the defendant, nor that it affirmatively appeared therefrom that the plaintiff, if negligent, was so negligent as to be barred from a recovery, nor that the collision should be attributed to negligence on her part as the proximate cause. ’ The petition set forth a cause of action, and the court did not err in overruling the general demurrer thereto.” In conclusion the writer appropriates the words of Judge Bell in the opinion in that case, and applies them to the instant case, as follows: “From all the facts appearing, we can not say that the railway company was not negligent in at least one or some of the particulars alleged, or that the plaintiff, if negligent, was so negligent as to be barred from a recovery, or that it affirmatively appears that the accident was attributable to negligence on the part of the plaintiff as the proximate cause. It is our opinion that the averments of the petition make a case for a jury, and therefore that the superior court properly overruled the general demurrer.”


author: Per Curiam. Luke, J.,

text:
    19385.
    SOUTHERN RAILWAY CO. et al. v. JENKINS.
    Decided April 10, 1929.
    McDaniel, Neely & Marshall, for plaintiff in error.

      Hewlett & Dennis, contra.
   Per Curiam.

No cause of action was set out in the petition in this case, in which it was sought to recover for injuries to a railroad employee, alleged to be due to the defective condition of a ladder which fell when he was ascending it for the purpose of working on a locomotive, and to the negligence of a coemployee in striking the ladder; and the court erred in overruling the general demurrer.

Judgment reversed.

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

Luke, J.,

dissenting. The only question presented by the record is whether the trial judge erred in overruling the general demurrer to the following petition:

“The petition of Mrs. Annie Jenkins respectfully shows:
“1. That the defendants herein are the Southern Railway Company . . and H. Guy White, a resident of said State and county.
“2. That defendants have jointly injured and damaged your petitioner in the sum of $40,000, by reason of the facts hereinafter set forth.
“3. That at all times herein mentioned your petitioner was the mother of one Thomas W. Jenkins, upon whom she.was dependent for support, and who actually contributed to her support in the sum of $300 per annum.
“4. That the said Thomas W. Jenkins, at all times herein mentioned, was a machinist in the employment of defendant Southern Railway Company.
“5. That defendant White was likewise an employee of said railroad company, and, as such, it was his duty to inspect the appliances used by the said Jenkins' in the performance of his duties as a machinist.
“6. That on or about the 2d day of July, 1926, the said Jenkins was, pursuant to his duty, at work upon the dome of an engine, which was the property of and within the shops of defendant railway company, located in said State and county.
“7. That in order to perform his work, it was necessary for him to mount the side of said engine, and for the purpose of doing so defendant had provided a ladder.
“8. That at the time the said Jenkins was working upon said engine other servants of defendant railway company, whose names are unknown, were likewise engaged in said work, and, for the use of all parties so engaged, defendant, through one of its servants, whose name is unknown, had, on the day prior to the injuries complained of,-placed a ladder upon said engine, by which those who were to work upon the dome thereof might go up and down.
“9. That defendant railway company’s ladders employed in such work were customarily equipped with spurs on the ends which were upon the ground or floor of said shops.
“10. That the ladder so placed upon said engine was equipped with spurs, but that from long use they had become defective, in that they were old, worn, and smooth at the end to such an extent that they would not engage the floor upon which they were placed, and thus hold the ladder securely in its upright position.
“11. That it was the duty of the defendant White to inspect the ladder in question, and to inspect the spurs affixed to same, and to report to his employer any defects or insufficiencies in connection therewith, and, in the event said spurs were not in good condition, to have said ladder withdrawn from use until properly equipped.
“12. That it is impossible for one using a ladder so equipped after being placed in position to tell from a casual inspection and examination thereof whether or not the spurs are in good condition and actually engage the floor and thereby fasten and hold the ladder in the proper position, because that said spurs are fastened to the rear of the ladder and at that part of same that rests on the ground, and the projections therefrom run downward into the floor and are thus concealed from view.
“13. That your petitioner’s son made no close and minute examination of said ladder; that the same looked to be in good condition with respect to the spurs attached to same, and he had no reason to suspect any defects or insufficiencies in same.
“14. That it was not the duty of petitioner’s said son to make such an inspection of said ladder as would be necessary in order to determine whether or not any insufficiencies existed as to the spurs attached to same.
“15. That petitioner’s said son was not warned by any servant or agent of defendant as to any deficiencies in said ladder, nor did he know of same.
'“16. That on the above-named date, as was usual and customary, petitioner’s said son started up said ladder for the purpose of doing his work; that arriving at the top of same, and while he was approximately ten feet above the floor of said shop, said ladder was" stricken and dislodged by a servant of defendant railway company, whose name is unknown, as he passed by the base of the same, and was caused to fall by reason thereof, and by reason of the insufficiencies and defects in said spurs, and thereby petitioner’s son was hurled violently and precipitately into a pile of scrap-iron near by, receiving serious and permanent injuries which occasioned his death on November 7, 1926.
“17. That a proper inspection of said ladder would have revealed the defects and insufficiencies complained of, and, once revealed, it was the duty of defendant to withdraw said ladder from use or to give notice to petitioner’s son of the defects and insufficiencies thereof.
“18. That defendants knew, or in the exercise of ordinary care should have known, of the defects and insufficiencies therein existing.
“19. That petitioner’s said son was a strong and able-bodied man of the age of 48 years, earning and capable of earning $36 per week, with time and a half for all overtime, and this action is brought for the full value of his life.
“20. That at the time of his injuries he was free from fault and blame, was in the exercise of ordinary care, and his injuries and death were the proximate result of the joint and concurring acts of negligence of the defendants in the particulars hereinafter set forth.
“21. That the defendants were negligent: (a) in failing to properly inspect said ladder; (6) in failing to properly equip said ladder with spurs that would engage the floor and hold the same in an upright position; (c) in failing to warn the deceased of the defects and insufficiencies with respect to said spurs; (d) in furnishing to deceased, as a safe instrumentality with which to work, a ladder that was equipped with spurs so old and worn as not to engage the floor and hold said ladder in an upright position; (e) in striking said ladder and causing the same to be moved at its base at the time in question and when same was not secured to the floor by means of spurs.
“Wherefore, the premises considered, petitioner prays judgment against defendants; that process may issue,” etc.

The demurrer was on the following grounds: “(1) No cause of action is set out in plaintiff’s petition against defendants or either of them. (2) The facts as set forth in plaintiff’s petition do not constitute a cause of action against defendants or either of them. (3) The facts averred in plaintiff’s petition impose no liability upon defendants or either of them.”

As I see it, the gist of the action is the alleged defective ladder, and the defense mainly relied on its “assumption of risks.” Authorities from other States might be cited indicating that the petition in this case does or does not set out a cause of action; and I might quote Georgia cases which, from general statements contained in the headnotes, lend color to either the contentions of the plaintiff in error or those of the defendant in error. However, the true rule appears to be that the facts of each case should be measured by the law as laid down in the Civil Code (1910), §§ 3130, 3131. In this connection see the decision in Williams v. Garbull Lumber Co., 132 Ga. 231 (64 S. E. 70), where it was said: “We do not find it necessary in this State to adopt any arbitrary rule as to tools bearing certain names, or described somewhat indefinitely as ’simple tools.’ If what is called the ’simple-tool rule’ is based on the principle of equality or superiority of opportunity for knowledge on the part of a servant, that principle forms a part of the test applied by our Civil Code (§§ 2611, 2612) in a suit against a master by a servant for an injury claimed to have arisen from the negligence of the master in failing to comply with the duties imposed on him in regard to machinery, and which, as already seen, has been held to apply in principle to eases arising from defective tools. The application of the rule that it must appear that the master knew or ought to have known of the defect or danger, and that the servant injured did not 'know and had not equal means of knowing such fact, and by the exercise of ordinary care could not have known thereof, to the facts of the particular case under investigation will furnish a solution of the question of liability or non-liability. In the determination of each case, the nature, charaeter, and simplicity or complexity of the tool is, of course, an important factor for consideration.”

Applying the foregoing principles to the case at bar, I am of the opinion that the petition is good as against the general demurrer, and that the court did not err in overruling the demurrer. The facts of this case differentiate it from the case of Henderson v. Mingledorff, 27 Ga. App. 165 (107 S. E. 884).


text:
    19427.
    Dodson v. The State.
    Decided April 10, 1929.

      Lawrence S. Camp, for plaintiff in error.
   Luke, J.

1. Special ground 2 of the motion for a new trial, complaining of the exclusion of certain oral evidence, is too incomplete to raise any question for the consideration of this court, since it fails to show that a pertinent question was propounded to the witness and that the answer thereto was excluded. See Griffin v. Henderson, 117 Ga. 382 (2) (43 S. E. 712); Ward v. Johnson, 23 Ga. App. 479 (3) (98 S. E. 405).

2. The instructions of the court to the jury were full and fair, and there is no merit in special ground 1, which complains of the court’s refusal to give a charge requested; nor in special ground 4, which complains that the court’s charge misled the jury. When the particular part of the court’s statement made in the presence of the jury is viewed in the light of the remainder of the statement, the jury could not have been misled or confused thereby, and there is no merit in special ground 3 of the motion for a new trial.

3. The evidence amply warranted the verdict, and, there being no merit in any special ground, the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, G. J., and Bloodtoorth, J., concur.


author: Bloodworti-i, J.

text:
    19527.
    RICHARDS v. THE STATE.
    Decided April 10, 1929.

      Hugh E. Combs, for plaintiff in error.

      M. L. Felts, solicitor-general, contra.
   Bloodworti-i, J.

The plaintiff in error was charged with vagrancy. The trial resulted in a conviction. A motion for a new trial was overruled, and he excepted. The part of the indictment necessary for a determination of the case is that the accused did “unlawfully wander and stroll about in idleness, being then and there able to work and having no property to support himself; and did then and there lead an idle, immoral and profligate life, having no property to support himself, and being then and there able to work and not working.” There is no evidence to show that the accused led an “immoral and profligate life.” Does the evidence support the other allegations of the indictment? We think not. In Leonard v. State, 5 Ga. App. 494 (63 S. E. 530), this court held: “Though numerous witnesses, whose testimony is uncontradicted, testified, that they had not seen the defendant work, that he had no visible means of support, and that he was always loafing in idleness when they saw him (and all of these witnesses saw him frequently), this evidence, though true, must yield, in a prosecution for vagrancy, to positive evidence, not necessarily in conflict therewith, and equally uncontradicted, that the defendant had earned and had been paid an amount of money sufficient to maintain him honestly, though only in a meagre style, even though he were capable of earning much more. Our statute as to vagrancy is intended'to enforce honest and reputable living, but it does not tend to luxury, nor compel any one to earn more than his necessities require.” In Hartman v. State, 119 Ga. 428, 429 (46 S. E. 628), Justice Candler said: “It will be observed that under both the old law and the amendment the gist of the offense of vagrancy is the failure or refusal of the offender to work when work is necessary to support himself or his family. .As was said of the old law in Daniel v. State, 110 Ga. 916 [36 S. E. 393], so it may be said of the amendment: ‘The statute was enacted to prevent men, able to work, from idling and wandering about the community, and becoming drones or thieves or charges upon the public/”

While each of two witnesses in this case swore that he knew the accused and saw him frequently, and that he wandered and strolled about in idleness, and apparently was able to work, one of them swore that he worked a little for Mr. Eeynolds during the year 1928; and the other witness, Mr. Eeynolds, swore that he paid him $5 per week and his board; that he was “as good worker as you ever saw if you could get him at it; he is a good hand;” and that he “tried to get him to work and he said that he was sick.” In his statement at the trial the defendant said: “I want to tell you that I worked year before last with Mr. Kinsey, and last year for Mr. A. J. Newsome for $2 a day. I worked some for Mr. Reynolds up until I got sick, and when I worked I saved my money, and when I got sick I quit work, and before I went to work they picked me up for vagrancy.” There was introduced in evidence an agreed statement of facts as follows: “The State admitted that the defendant worked for J. B. Kinsey every work day during the year 1926 for $1.50 per day, and that he worked for A. J. Newsome every work day during the year 1927 at $2 per day.” Taking this statement as a basis for his calculation, counsel for plaintiff in error shows in his brief that the accused made approximately $1100 during the two years prior to the time he was taken sick and prior to the date he is alleged to have been a vagrant. A witness for the State swore: “Judging from his appearance it would not take a great deal to support him a week. If he were to work two or three days a week he would have enough to support himself.” In Hawks v. State, 3 Ga. App. 447 (60 S. E. 207), Judge Russell, speaking for the court, said: “The fact that one may work one or two days in a week and then remain idle the remainder of the week would not constitute one a vagrant, although he might be able to work and have no property to support himself, provided his earnings for the proportion of time he might labor were in fact sufficient to support him and furnish him an honest livelihood.” The date alleged in the indictment was April 15, 1928. The State, by its evidence, sought to fix that as the time that the accused was a vagrant. In the statement of the accused he said, “When I worked I saved my money,” and there is no evidence in the record to contradict this. Under the evidence it' “would not take a great deal to support him.” If he made $1100 during 1926 and 1927, and saved his money, we are authorized to believe that on April 15, 1928, his savings were sufficient to support him, and that at that time he was not likely to become a charge upon the public. As was said in Lewis v. State, 3 Ga. App. 324 (59 S. E. 933), “We are sure that the evidence is entirely insufficient to establish the charge of vagrancy. Doubtless on much stronger evidence.a large portion of the population of our towns and cities could be declared vagrants.”

Judgment reversed.

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


text:
    19531.
    Albritton v. The State.
    Decided April 10, 1929.
    P. Z. Geer, for plaintiff in error. J. A.'Drake, solicitor, contra.
   Broyles, C. J.

The accused was tried for the offense of assault and battery, under an accusation which contained three counts. Each count charged an assault and battery upon a different person. The trial resulted in a general verdict of guilty, which meant guilty on all three counts. A ground of the motion for a new trial assigns error on the failure of the court to instruct the jury that they might find the defendant guilty, or not guilty, on one or more of the counts in the accusation, and if so that they should specify in their verdict on which count or counts he was found guilty, or not guilty; that if they should find him guilty on all three counts, the form of their verdict would be: “We, the jury, find the defendant guilty;” that if they should find him not guilty on all three counts the form of their verdict would be: “We, the jury, find the defendant not guilty.” The general verdict of guilty not being demanded by the evidence, the failure of the judge to charge the jury substantially as set forth above was error requiring a new trial.

The remaining special grounds of the motion for a new trial (some of which are expressly abandoned in the brief of counsel for the plaintiff in error) show no harmful error. As there must be another trial of the case, the question as to the sufficiency of the evidence to support the verdict is not passed upon.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    19534.
    Kirkland v. The State.
    Decided April 10, 1929.
    P. Z. Geer, for plaintiff in error. J. A. Drake, solicitor, contra.
   Bloodworth, J.

This is a companion case to that of Albritton v. Sta-te, ante, and is controlled by the ruling in that case.

Judgment reversed.

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


text:
    19541.
    Armstrong v. The State. Jackson v. The State.
    Decided April 10, 1929.

      J. T. Grice, solicitor-general, O. G. Darsey, contra.
    19542.
   Bloodworth, J.

1. “Statutes regulating the drawing of jurors are generally regarded as directory merely, and where there has been substantial compliance with legal requirements, any irregularity in the drawing which can not affect the right to a trial by a fair and impartial jury furnishes no ground for challenging the array.” Governor v. State, 5 Ga. App. 357 (63 S. E. 241). See also, in this connection, Woolfolk v. State, 85 Ga. 69 (5, 6, 7) (11 S. E. 814); Crawford v. State, 81 Ga. 708; Garter v. State, 56 Ga. 463 (2). Under the foregoing ruling and the facts of the instant eases, the overruling of the challenge to the array of the jurors was not error for any reason assigned in the challenge.

2. In neither case was the evidence adduced upon the trial sufficient to authorize a verdict of voluntary manslaughter; and therefore the court erred in overruling the motions for a new trial.

Judgments reversed.

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


text:
    19569, 19570.
    Landrum v. The State.
    Decided April 10, 1929.

      Saffold, Sharpe & Saffold, I. II. Corbitt, for plaintiff in error.

      Marvin L. Gross, solicitor-general, A. S. Bradley, contra.
   Luke, J.

In each of these cases the bill of exceptions was certified on January 16, and was filed in the office of the clerk of the trial court on February 1. The filing- having occurred more than fifteen days from the date of the signing- of the bill of exceptions, this court, under repeated decisions of the Supreme Court and of the Court of Appeals, has no jurisdiction to entertain the case.

Writs of error dismissed.

Broyles, O. J., .and Bloodworlh, J., concur.


author: Jenkins, P. J.

text:
    18516.
    Kennedy v. Linder.
    Decided April 10, 1929.

      S. P. New, for plaintiff in error. C. C. Crockett, contra.
   Jenkins, P. J.

1. The bill of exceptions in this case specifically assigns error upon the ruling of the trial judge in refusing to permit the defendant in trover, after the entering of a judgment of nonsuit against the plaintiff, to enter up judgment for the value of the property sued for, upon the defendant’s election to take a money judgment. Accordingly the motion to dismiss the writ of error must be denied.

2. Under the answers returned by the Supreme Court to the questions certified to it in this case, the court erred in holding that the defendant in trover, when the plaintiff was nonsuited, was not entitled to a judgment, upon his election to take a money judgment, for the value of the property in controversy. 168 Ga. 257 (147 S. E. 64).

Judgment reversed.

Stephens mid Bell, JJ., concur.


text:
    19164.
    Kimbrel v. Grow.
   Jenkins, P. J.

1. “In a claim case where the plaintiff in fi. fa. seeks to make out a prima facie case by showing possession in the defendant, it is incumbent on him to show such possession at the time of the rendition of the judgment, or at the time of the making of the levy, or at some time intermediate between the judgment .and the levy.” Martin v. Cowan, 134 Ga. 477 (68 S. E. 69).

2. Where, under a common-law fi. fa., certain crops were levied upon as the property of the defendant, to which the wife of the defendant filed a claim, evidence that the crops were grown upon land rented from another by the defendant and were produced by the labor of the defendant and his minor sons was sufficient to show prima facie that the title to the crops was in the defendant in fi. fa., and to shift the burden of evidence to the claimant. Civil Code (1910), § 5170; Greene v. Matthews, 31 Ga. App. 265 (120 S. E. 434).

Decided April 10, 1929.

J. A. Drake, for plaintiff in error. W. I. & P. Z. Geer, contra.

3. It can not be said as a matter of law that the inference of ownership in the defendant in fi. fa. was conclusively explained and rebutted, where the only evidence tending in that direction, besides the claimant’s general assertion of title, was her testimony to the effect that her husband rented the land as her agent and that she paid the rent and was the real tenant, and that her stock and farming implements were used in cultivating the crops, and that she paid for such outside labor as was employed, including certain help in gathering, and where on cross-examination she further testified that she had “no idea how much money” was expended either in making or gathering the crop and did “not know anything about the crop,” and where it appeared that she was not known in the renting contract and did not pay the rent until after the crops had been levied upon to satisfy the execution against her husband, and after a distress warrant had been foreclosed against him by the landlord. The jury, upon a consideration of the claimant’s interest with the other circumstances, were not bound to find in accordance with her testimony. Blount v. Dunlap, 34 Ga. App. 666 (4) (130 S. E. 693), and cases cited.

4. “Where a judge gives in charge to the jury the general principles of law applicable to an issue in the ease, a party who desires more specific and concrete instructions as to one of his contentions should make a request therefor in writing.” Charleston t&c. Ry. Co. v. Duckworth, 7 Ga. App. 350 (3) (66 S. E. 1018). The presiding judge having in general terms submitted to the jury the law applicable to the issue of whether the title was in the defendant in fi. fa. or in the claimant, and this being the sole issue involved, he was not required, in the absence of a proper and timely written request, to instruct the jury more definitely as to the contentions of the claimant. See further, in this connection, Wall v. Wall, 15 Ga. App. 156 (3) (82 S. E. 791); Mills v. Sanders, 16 Ga. App. 298 (2) (85 S. E. 207).

5. The evidence authorized the verdict in favor of the plaintiff in fi. fa., and no error of law was committed. The court did not err in refusing a new trial. Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    19169.
    Grant v. Atlantic Coast Line Railroad Company el al.

   Jenkins, P. J.

1. “Under the Federal safety-appliance acts, carriers in interstate commerce are liable in damages to their employees, injured in the discharge of duty, whenever the failure to comply with those acts is the proximate cause of the injury.” L. & N. Railroad Co. v. Layton, 243 U. S. 617 (37 Sup. Ct. 456, 61 L. ed. 931) ; Lang v. New York Central R. Co., 255 U. S. 455, 459 (41 Sup. Ct. 381, 65 L. ed. 729). But “liability can not be predicated upon the defendant’s violation of a Federal statute enacted for the safety of employees, unless there is a causal connection between such violation and the injury or death.” Watson v. Georgia Southern & Florida Ry. Co., 36 Ga. App. 452 (136 S. E. 921). Accordingly, in a suit brought by an employee of a railroad company for damage alleged to have been occasioned by violation by the defendant of the Federal safety-appliance acts, it was not error for the court to state the contention of the defendant that the injury to the plaintiff was brought about solely by his own negligence, and that if the jury should find this contention to be the truth of the case, the plaintiff would not be entitled to recover.

2. A failure by a railway company engaged in interstate commerce to equip and maintain its cars as required by a rule of the interstate-commerce commission, adopted in pursuance of the authority conferred upon it by the safety-appliance acts of Congress, amounts to a violation of both the rule and the statute, and the charge of the court, to the effect that the plaintiff must show such a violation of the act and the commission’s regulations resulting in whole or in part in plaintiff’s proved injuries, was not erroneous, since the alleged delinquency of the defendant upon which the action was grounded was in violation of the act because in violation of a regulation of the commission authorized by the act.

3. The charge of the court that the defendant contended that “there was no failure to comply with the safety-appliance act of Congress, and that the car was equipped according to the interstate-commerce commission’s standard equipment specifications,” and that if such contention was found to be the truth of the case the verdict should be for the defendant, was not error on the theory that it relieved the defendant of the duty of maintaining the car in accordance with such specifications, after having once complied with its duty of properly equipping the same, since the excerpt complained of manifestly referred to the defendant’s contention as to the condition of the car at the time of the alleged injury to plaintiff. Moreover, the court elsewhere in the charge instructed the jury that “the law required of the defendants that the car in question here must, at the time and place in question, have been equipped and maintained” as required by the rule of the interstate-commerce commission.

4. The remaining exceptions, relating to the alleged failure of the court to charge, on its own motion, certain stated principles of law, are without merit, since the charge of the court as given was full and fair, and covered the issues made by the pleadings and the evidence. Even if more elaborate instructions were desirable and proper, they should have been requested. The evidence authorizes the finding in favor of the defendants, and it can not be set aside.

Decided April 10, 1929.

T. J. Lewis, J. Caleb Clarice, for plaintiff.

McDaniel, Neely & Marshall, for defendants.

Judgment affirmed.

Stephens and Bell, JJ., eonour.


text:
    19170.
    Hughes et al. v. Weaver.
   Jenkins, P. J.

1. “A person professing- to practice surgery or the administering of medicine for a compensation must bring to the exercise of his profession a reasonable degree of care and skill. Any injury resulting from a want of such care and skill will be a tort for which a recovery may be had.” Civil Code (1910), § 4427. “This standard, when applied to the facts and circumstances of any particular case, must be taken and considered to be such a degree of care and skill as, under similar conditions and like surrounding circumstances, is ordinarily employed by the profession generally.” McLendon v. Daniel, 37 Ga. App. 524, 528 (141 S. E. 77) ; Fincher v. Davis, 27 Ga. App. 494 (5) (108 S. E. 905). Accordingly, the petition in the instant case, which alleged that the defendant physicians and surgeons had negligently, while operating on the plaintiff for hemorrhoids, cut and severed the sphincter ani muscle, and that it was wholly unnecessary to do so in the performance of the operation, set forth a cause of action. Nor did the allegation to the effect that the defendants in so doing failed to exercise that degree of care and skill which surgeons engaged in the same general line of service would have used amount to a mere conclusion, in view of the allegation that it was wholly unnecessary to cut the muscle in order to perform the operation.

2. The testimony of the plaintiff’s husband, who was present at the operation, to the effect that he could not tell whether the defendant who actually performed the operation used a certain described instrument inside the rectum or whether he pulled the parts out, was not erroneously admitted, since it was a part of the testimony of the witness in describing the acts and doings of the defendants at the time of the operation, and the witness swore that he was present, and that the defendant used a described instrument, and with it “cut out” certain particles from the plaintiff’s person.

{a) The testimony of the plaintiff’s husband to the effect that after the treatment by defendant “she grew worse” was not a mere conclusion, in view of his testimony describing her condition and symptoms.

3. The testimony of the plaintiff as to her condition after the operation and treatment by the defendants was properly admitted in evidence, and was not objectionable on the ground that the condition testified about existed after other physicians had treated her.

4. The testimony of practicing physicians who treated the plaintiff after the alleged operation, and their opinions as to her condition and the cause of the condition in which she was found, was properly admitted, in view of the testimony of each of them as to his training and experience. This is true even though they did not qualify as specialists in surgery. The weight to be given their testimony was for the jury. Towaliga Falls Power Co. v. Sims, 6 Ga. App. 749 (10), 759 (65 S. E. 844).

5. The testimony of the plaintiff, concerning efforts she had made to locate the trained nurses who had attended her after the treatment and operations by the defendants, could not have been harmful to the defendants, since no presumption prejudicial to the plaintiff arose from her failure to produce such witnesses. Bank of Emanuel v. Smith, 32 Ga. App. 606 (2) (124 S. E. 114).

6. In view of the uncontradicted testimony that one of the defendant physicians had discontinued the treatment of the case and left for Florida, the testimony of the plaintiff that she employed another physician after that defendant had “quit my case,” and after she had made an effort to induce that defendant to return to the treatment, was not misleading or prejudicial, and was properly admitted.

7. The charge of the court to the effect that the burden was on the plaintiff to prove all the allegations made in her petition, except the allegations as to the residence of the defendants, was not error because, as contended, it failed to instruct the jury that the burden was on the plaintiff to show a want of “due care, skill, or diligence” on the part of the defendants. The petition alleged that the defendants had failed to exercise the degree of care and skill ordinarily practiced by physicians and surgeons engaged in the same general line of service, and the jury were further instructed by the court as to the duty resting upon the defendants.

8. The charge of the court in substantially the language of the first division of this decision was not erroneous as placing a greater or additional burden upon the defendants than provided by law, for the alleged reason that the court used the expression “care, skill, and diligence,” instead of the words “care and skill” as employed by the code, in defining the duty resting upon the defendants. Georgia Northern Ry. Co. v. Ingram, 114 Ga. 639 (40 S. E. 708).

9. One of the grounds of exception complains that the court erred in charging the jury that one of the defendants, Dr. Smith, contended that even if the muscle was cut, and the cutting thereof was negligence, it was not his act, and he was not responsible for the consequences, and that if there was no participation by Dr. Smith in the act, and no concert of action between the defendants, and no procuring, counseling, or advising of the act by Dr. Smith, he would not be liable for such act if it was done. Exception is taken to this charge for the reason that the theory of defense indicated by it was not advanced by the defendant Smith, and it is contended that to present the same to the jury was confusing, misleading, and prejudicial to the defendants. While it is true that the whole pressure of the case centered upon the question whether the defendants had or had not cut the muscle previously referred to, eaeli of tlie defendants contending that such was not the case, the fact that the court suggested that one of the defendants might not be liable for the act of the other can not be taken as prejudicial to either of them, or as an expression of opinion upon the facts of the case, since it was clearly indicated, throughout the charge, that each of the defendants denied that the act complained of had been committed.

Decided April 10, 1929.

10. The ground of the motion for a new trial that the petition does not authorize a recovery for past, present, and future pain and suffering is not borne out by an examination of the record. The petition does ask for damages in a stated amount for the injury complained of, and sets forth that the injury continues, and will continue for the remainder of the plaintiff’s life.

11. The court did not err in permitting the plaintiff, prior to the submission of the case to the jury, to amend her petition by setting forth that she did not know upon which of the three occasions when operations were performed by the defendants the muscle referred to had been cut, but that it was cut upon either the first, the second, or the third operation performed by them, thus changing the original allegation that it was cut upon the first of these operations. One of the functions of amendments is to permit a plaintiff to make the pleadings conform to the facts as they might have been developed by the testimony. There is nothing to indicate that the defendants were deprived of any right by this amendment, of that they were debarred from making any proof which they may have desired to malee with reference thereto.

12. The remaining grounds of exception relate to proof by the plaintiff’s husband of the circumstances surrounding the employment of the defendants. He testified that just prior to their employment he read an advertisement signed by the defendant Smith, and published in one of the daily papers having a large circulation, setting forth their skill in this particular line of surgery, and that he was thereby induced to employ them. This evidence having been admitted over objection, it was subsequently, on motion of the defendants, ruled out; whereupon the defendants insisted that the court declare a mistrial, on the ground that testimony of such character was calculated to prejudice the defendants in the minds of the jury. The judge, having ruled out the testimony, declined to declare a mistrial. His judgment in so doing can not be held to be such an abuse of discretion as would make it necessary to set aside the verdict and judgment.

13. While the evidence did not demand the verdict in favor of the plaintiff, there was an abundance of testimony to authorize it, and it can not be set aside for any of the reasons urged. Nor can it be said that the amount of the verdict was excessive.

Judgment affirmed.

Stephens and Bell, JJ., concur.

Norman I. Miller, for plaintiffs in error.

Oliver O. Hancock, Thomas J. Lewis, contra.


text:
    19176.
    WARDLAW, executrix, v. WITHERS, executor.
    Decided April 10, 1929.

      David F. Pope, for plaintiff in error. S. W. Fariss, contra.
   Jenkins, P. J.

This was a suit by Withers, as executor of Dickerson, against Mrs. Josie Wardlaw, as executrix of P. C. Ward-law, seeking to recover a payment that the plaintiff, as executor, made to the defendant as executrix, on a fi. fa. held against one Hunt as principal and the plaintiff’s testator as surety. The petition shows that the fi. fa. had become not only dormant but dead during the period of the plaintiff’s administration, and the plaintiff seeks to recover upon this ground, alleging that he, as executor, made the payment believing that the defendant held a superior lien, against the assets belonging to Dickerson’s estate. He further seeks a recovery upon the ground that the fi. fa. on which the payment was made had become extinguished by reason of the act of defendant’s testator, Wardlaw, in satisfying the same as against the principal debtor, which satisfaction was in the form of a written release, and was entered upon the execution docket. The plaintiff sets forth that at the time the payment was made he had no actual knowledge of-the release. On the trial of the case the defendant pleaded that the release referred to was invalid, in that the name of Wardlaw signed thereto was a forgery. In support of this contention the defendant introduced evidence showing efforts on the part of Wardlaw to collect the fi. fa. from Hunt after the date of the purported release, and evidence showing an actual payment on the fi. fa. by Hunt after the date of the purported release.

1. “An administrator in his discretion may relieve a debt from the bar interposed by the lapse of time, by a new promise to pay: Provided, such bar had not occurred in the lifetime of his intestate.” Civil Code (1910), § 4009. In the absence of fraud, accident, or mistake, such a payment will be deemed voluntary, even though made in ignorance of the law governing the time when executions become barred by the statute of limitations. Civil Code (1910), § 4317. Accordingly, the payment alleged to have been made in this case can not be recovered on the first ground set forth in the petition.

2. But the payment was not voluntary if made under an honest mistake of fact. Accordingly, if at the time of the payment there had been an actual nullification and release of the execution by the act of the defendant’s testator, the plaintiff would be entitled to prevail under the second contention set forth in his petition. It being an issue of fact whether the instrument constituting the release was genuine, or whether the name of the defendant’s testator signed thereto was a forgery, the court erred in directing a verdict in favor of the plaintiff.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    19178.
    Cobb v. Burgamy.
    Decided April 10, 1929.
   Jenkins, P. J.

1. The act creating- the city court of Sandersville (Ga. L. 1901, p. 164) makes no provision for an appearance term for civil cases, but provides that all such cases shall be tried at the term to which they are returned, and that all defenses shall be filed at least five days before the term of court to which suits are returnable, and that unless such defenses are so filed, “said cases shall be considered in default, and such default shall not be opened, except in the manner provided by law for opening defaults in the superior courts of this State.”

2. While it has been held that the provisions of the Civil Code (1910), '§ 5656, relative to the opening of judgments of default in the superior court at the trial term, on cause shown, do not have application to suits in those courts wherein judgment may be taken at the first term, where by the procedure provided for such courts the superior-court practice is impracticable and therefore inapplicable (Thurmond v. Groves, 126 Ga. 779 (55 S. E. 915) ; Jenkins v. Whittier Mills Co., 20 Ga. App. 828 (93 S. E. 530) ; Daniel v. Nixon, 21 Ga. App. 206 (93 S. E. 1013); Bridges v. Wilmington Savings Bank, 36 Ga. App. 239 (136 S. E. 281) ), such rulings should not be given effect where, as here, the act creating the city court does limit the time allowed for the filing of pleas, and specifically provides the method by which a defendant may “open the «default” resulting from a failure to plead within the time provided by the act. Such provision, properly construed, authorizes the judge of the city court of Sandersville to “open” the automatic default resulting from the failure to plead, upon a showing such as would authorize a judge of the superior court, at the trial term, to open a previously entered judgment of “in default.”

3. While the motion made by the defendant in the instant case does not appear to have been sworn to, and does not appear of itself to meet the requirements of section 5656 of the Civil Code relative to opening defaults in the superior court, the judge of the city court recites in his judgment that evidence was heard upon the question, and • that the defendant “fully complied with the law relative to the opening of default in the superior courts of said State, and, although the court is of the opinion that the case is one where in the exercise of his discretion the motion should be granted and default allowed to be opened, and the plea and answer filed, as setting forth a good and meritorious defense, the court overrules the motion to open default, and denies the right to defendant to file a plea and answer, and grants a judgment in default, for the reason that the court is of the opinion that he is bound by previous decisions of the Supreme Court which take from him the right of exercising any discretion in cases in default in the city court.” It will, therefore, be assumed that the showing made to the court was upon oath and met the requirements of the code-section referred to. Under such circumstances the court was authorized to “open” the default and allow the defendant to plead.

Judgment reversed.

Stephens and Bell, JJ., eoneur.

M. L. Gross, for plaintiff in error. E. W. Jordan, contra.


author: Stephens, J.

text:
    19210.
    ASPINWALL v. HOLLAND.
    Decided April 10, 1929.

      E. L. Williams, for plaintiff. G. E. Parker, for defendant.
   Stephens, J.

(After stating the foregoing facts.)

Upon an examination of the charge of-the court as it appears of record, it appears therefrom that the court fully and correctly charged the principles of law which in the motion for a new trial the plaintiff alleges the court'failed to charge. The grounds of the motion containing these exceptions are therefore not true in fact. The approved charge of the court must be taken as evidence as to what the court charged, rather than the grounds contained in the motion for a new trial, although the grounds of the motion are approved by the court. Fruit Dispatch Co. v. Roughton-Halliburton Co., 9 Ga. App. 108 (2) (70 S. E. 356).

The insufficiency of the plea, in failing to allege that the alterations in the note were made with the intent to defraud by a person claiming a benefit under it, furnishes no ground for an exception, in the motion for a new trial, to the failure of the court to direct a verdict for the plaintiff. There is therefore no merit in this ground of the motion. Simpson v. Wicker, 120 Ga. 418 (47 S. E. 965, 1 Ann. Cas. 542); Groover v. Wilkes, 148 Ga. 794 (98 S. E. 503).

Since, as it appears from the evidence that the defendant testified that the note had. been materially changed since he executed it, and since the note itself was introduced in evidence, the jury could, so far as appears from the record, have inferred, both from the testimony of the defendant and from the appearance of the note itself, that it had been materially changed by some one claiming a benefit under the note, and since, after the defendant had filed the plea alleging that the note, although executed by him, had been materially changed by the plaintiff with intent to defraud the defendant, the burden was upon the plaintiff, after proof of the alteration .of the note, to establish the fact that it had not been changed with the intent to defraud the defendant, and, the only evidence for the plaintiff respecting the alteration of the note being that it had not been altered, the jury was authorized to find in favor of the defendant’s plea. Civil Code (1910), § 4296; Wheat v. Arnold, 86 Ga. 479; Winkles v. Guenther, 98 Ga. 472 (25 S. E. 527).

The evidence authorized the verdict found for the defendant, and the grounds of the motion for a new trial are without merit.

Judgment affirmed.

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


text:
    19322.

      Green v. Beaumont.
   Stephens, J.

1. The exclusive jurisdiction vested in the superior court as respects alimony applies only as respects proceedings to adjudicate the plaintiff’s right to alimony and to render a judgment or decree therefor. Exclusive jurisdiction is not vested in the superior court as respects suits instituted upon a contract entered into between a husband and his wife by which he agrees to pay alimony to her. It follows, that, where suit was instituted in a city court upon a contract by which the defendant, as the husband of the plaintiff, had agreed to pay to the plaintiff certain sums of money as alimony, which contract was approved by the judge of the superior court, a plea to the jurisdiction, upon the , .ground that the action was one for alimony, and was therefore within the exclusive jurisdiction of the superior court, was properly stricken.

2. Evidence in support of an issue not authorized by the pleadings is properly excluded. In a suit upon a written contract, where the defendant admits the execution of the contract and pleads only a general denial of liability thereon and that the plaintiff has agreed to release the defendant from liability on the contract, and where the defendant pleads no parol agreement or understanding between himself and the plaintiff as constituting a part of the contract, and pleads no failure or lack of consideration, evidence offered by the defendant to establish parol agreements and understandings contemporaneously with or prior to the execution of the written contract sued on, and to establish a lack or failure of consideration, is properly excluded.

3. A refusal to allow an amendment to the defendant’s plea is not a ground for a motion for a new trial.

4. Where the only exception to the direction of a verdict is contained in the bill of exceptions, which was presented for certification on November 2, 1928, and where the date of the ruling' complained of was June 6, 1928, and therefore not within the legally required time of either 30 or 60 days for the taking of an exception to a ruling, this court is without jurisdiction to pass upon the assignment of error excepting to the direction of a verdict.

5. What purports to be a brief of the evidence in this case being subject to the criticism made in O’Farrell v. Templeman, 39 Ga. App. 222 (146 S. E. 914), and it therefore appearing that no bona fide effort has been made to brief the evidence as required by the Civil Code (1910), § 6093, this court will not consider the evidence, and therefore will not pass upon the grounds of the motion for a new trial excepting to the verdict as being without evidence to support it and contrary to law.

Decided April 10, 1929.

Paul S. Etheridge & Son, Joseph D. Lewis, William A. Thomas, for plaintiff in error.

Homer O. Denton, E. E. Garter, contra.

6. This being a suit on a contract by which the defendant as the husband of the plaintiff had agreed to pay to the plaintiff certain sums of money as alimony, which contract was approved by the judge of the superior court, and it appearing that the court did not err in striking the defendant’s plea to the jurisdiction, and no error appearing from the assignments of error legally presented for consideration, the judgment striking the plea to the jurisdiction and the judgment overruling the defendant’s motion for a new trial are each affirmed, and the verdict directed for the plaintiff in the full amount sued for is allowed to stand.

Judgment affirmed.

JenMns, P. J., and Bell, J., concur.


text:
    19325.
    Cooper v. Harris et al.

    Decided April 10, 1929.
   Stephens, J.

1. Although a case in this court is one in which it is not sought to review a judgment upon a motion for a new trial, yet what purports to be a brief of the evidence must be such a brief as is required by the Civil Code (1910), § 6093, in motions for a new trial. Civil Code (1910), § 6140 (1); Ryan v. Kingsbery, 88 Ga. 361 (14 S. E. 596); Cooper v. Whaley, 90 Ga. 285 (15 S. E. 824); Batchelor v. Batchelor, 97 Ga. 425 (24 S. E. 157).

2. It appearing in this case, which comes to this court upon a direct bill of exceptions to the award of a nonsuit, that no bona fide effort has been made to brief the evidence by reducing it to narrative form, as is required' before this court can be called upon to consider the evidence, and what purports to be a brief of the evidence being matter contained in the bill of exceptions which consists of questions and answers, matter excluded from evidence, objections of counsel as to the admissibility of testimony, rulings of the court thereon, and interpolations and colloquies by counsel, no brief of the evidence as is required by law is presented for this court’s consideration. Roberts v. Rowell, 152 Ga. 97 (108 S. E. 466) ; Jackson v. Dorsey, 26 Ga. App. 372 (106 S. E. 210) ; O’Farrell v. Templemam, 39 Ga. App. 222 (146 S. E. 914).

3. The only assignments of error presented in the bill of exceptions being assignments of error upon the award of a nonsuit, and the admission and exclusion of testimony,, the merits of none of which can be determined without a consideration of the evidence, and there being no legal brief of the evidence, no error appears. The judgment awarding a nonsuit is therefore affirmed.

Judgment affirmed.

JenMns, P. J., and Bell, J., concur.

J. A. McFarland, for plaintiff.

R. C. Piiiman, W. M. Sapp, for defendants.


author: Bell, J.

text:
    19153.
    Wilder v. Gardner.
    Decided April 11, 1929.

      Morgan & Johnson, for plaintiff in error.

      C. A. Christian, J. S. Ridgdill, F. Kontz Bennett, contra.
   Bell, J.

1. A person in control of premises may be responsible even to a trespasser for injuries caused by pitfalls, man-traps, or other like contrivances so dangerous in character as to imply a disregard of consequences or a willingness to inflict injury. Mandeville Mills v. Dale, 2 Ga. App. 607 (58 S. E. 1060).

2. An occupier of land who places thereon a spring-gun for the purpose of preventing depredations by animals or human beings is guilty of an actionable wrong to a trespasser who enters upon the premises casually and for no unlawful purpose, and who, without warning, is shot and injured by such contrivance. 45 C. J. 750, 751; State v. Barr, 11 Wash. 481 (39 Pac. 1080, 29 L. R. A. 154, 48 Am. St. R. 890) ; Scheuermann. v. Scharfenberg, 163 Ala. 337 (50 So. 335, 24 L. R. A. (N. S.) 369, 136 Am. St. R. 74, 19 Ann. Cas. 937).

3. One who by advice, counsel, or command, procures another to commit a wrong may be held liable equally with the actual perpetrator, and may be sued separately or jointly with him; and this is true irrespective of whether there exists between the two any such relation as master and servant, or other relation giving to the one authority over the other. Civil Code (1910), § 4469; Burns v. Horkan, 126 Ga. 161 (3) (54 S. E. 946); Luke v. DuPree, 158 Ga. 590 (124 S. E. 13); Burch v. King, 14 Ga. App. 153 (2), 155 (80 S. E. 664); Lambert v. Cook, 25 Ga. App. 712 (104 S. E. 509) ; Evans v. Cannon, 34 Ga. App. 467 (2) (130 S. E. 76) ; Morris v. Gibson, 35 Ga. App. 689 (134 S. E. 796).

4. Applying the above rulings, there was some evidence to authorize the verdict against the defendant as procurer. There was no merit in any of the exceptions -to the charge of the court or to the refusal of requests to charge. The court did not err in refusing a new trial.

Judgment affirmed.

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


text:
    19171.
    Ragsdale v. American Agricultural Chemical Co.
    ■ Decided April 11, 1929.

      E. E. Williams, for plaintiff in error.

      Mingledorff & Gibson, contra.
   Bell, J.

In a suit upon a promissory note, to which the defendant maker pleaded damage because the plaintiff payee refused to return to the defendant according to contract certain collateral notes for collection, the proceeds to be applied to the note sued on, the defendant failed to furnish any data by which the jury could determine the amount of the damage, where he testified that he did not know the number or amount of such collateral notes, and there was no other evidence upon the subject. The court did not err in directing a verdict in favor of the plaintiff. Miller v. Timmerman, 35 Ga. App. 83 (132 S. E. 138) ; Joyner v. Reynolds Lumber Co., 36 Ga. App. 694 (2) (137 S. E. 342).

Judgment affirmed.

Jenhms, P. J., and Stephens', J., ooneur.


text:
    19173.
    Henderson v. Jefferson Standard Life Insurance Co.
   Bell, J.

1. In a suit upon a life-insurance policy, where the defendant pleaded that the policy was void because the insured in his application had given materially false answers to the questions, “Have you been disabled or received medical or surgical attention within the past five year's?” and “Have you consulted a doctor for any cause not included in the above answers?”, it was permissible for the defendant to prove that a few months before applying for the insurance the insured made to third persons declarations contrary to the facts stated in the application, the same being admissible as declarations of a person, since deceased, against his interest, and not made with a view to pending litigation. Civil Code (1910), § 576S; Chandler v. Mutual Life &c. Asso., 131 Ga. 82 (61 S. E. 1036) ; Murdock v. Adamson, 12 Ga. App. 275 (3) (77 S. E. 181); Freeman v. Metropolitan Life Ins. Co., 35 Ga. App. 770 (4) (134 S. E. 639).

2. While it is true that where a defense to a suit upon an insurance policy is such as to impute fraud to the insured in obtaining the policy, and where the fact of perpetration of the fraud is otherwise issuable under the evidence, proof of the good character of the insured may be relevant and admissible for consideration by the jury' in determining the preponderance of evidence in regard to such defense, yet the testimony of witnesses who are uneontradicted and are not otherwise impeached or discredited, and who swear positively to facts sustaining the defense, should not be discarded by the jury merely because of evidence of the insured’s previous good character. In such a ease the evidence as to the insured’s character for honesty and integrity would not, as against the other evidence, be sufficient to make the question of his fraud in procuring the policy an issue of fact for determination by the jury so as to prevent the direction of a verdict in favor of the insurer upon such defense. Jones v. Teasley, 25 Ga. App. 784 (3) (105 S. E. 46); Neill v. Hill, 32 Ga. App. 381 (2) (123 S. E. 30). This court did not hold to the contrary when this case was here upon a prior occasion, but it was then ruled that, irrespective of what might have been the effect of proper evidence of the insured’s good character, there was no such evidence thereof as could have been considered by the jury as rebutting the evidence introduced by the defendant insurer. Jefferson Standard Life Ins. Co. v. Henderson, 37 Ga. App. 704 (141 S. E. 498). Under the law as laid down upon the former hearing, which became the “law of the case,” the evidence upon the last trial conclusively established the defense pleaded, and the court properly directed the verdict in favor of the defendant.

Decided April 11, 1929.

G. Lee Lichens, Sibley & Sibley, for plaintiff.

Bryan & Middlebroohs, Allen & Pottle, for defendant.

Judgment affirmed.

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


text:
    19188.
    Graham, executor, v. Jones.
    Decided April 11, 1929.

      P. W. Copeland,, Maddox, Matthews & Otvens, for plaintiff in error.

      J. L. Wallace, L. A. Lean, contra.
   Bell, J.

A plaintiff can not recover except upon the cause of action as laid in his petition. The plaintiff here sued for the amount of certain money expended for the benefit of the defendant’s testator and for the value of certain services rendered to the testator during his lifetime, the case being laid upon the theory of an express promise and agreement by the testator to pay to the plaintiff the amount of the money so expended and the value of the services so rendered. The evidence failed to show any such special contract; and the plaintiff, having sued on a special agreement, was not entitled to recover on an implied obligation. The verdict in the plaintiff’s favor was therefore unauthorized and should have been set aside on the defendant’s motion for a new trial. Alford, v. Davis, 21 Ga. App. 820 (4 c) (95 S. E. 313) ; Shropshire v. Heard, 27 Ga. App. 256 (107 S. E. 892) ; Seaboard Air-Line Ry. Co. v. Henderson Lumber Co., 28 Ga. App. 391 (111 S. E. 220).

Judgment reversed.

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


text:
    19197.
    Beckham v. Davis.
    Decided April 11, 1929.

      Dillon, Calhoun & Dillon, for plaintiff in error.

      Jones, Dvins, Moore & Powers, Sutherland & Tuttle, contra.
   Bell, J.

1. Where a person offers to contract in a name which imports a partnership, representing expressly or impliedly that he is a member-of a partnership of that name, and the other party acts upon the representation and is induced to enter into the contract, believing that he is dealing with such a partnership, the party making the representation will be bound as a partner, and, in a suit upon the contract, against the putative partnership, will be estopped to deny the existence of the partnership or his relation thereto as a member. Mims v. Brook, 3 Ga. App. 247 (59 S. E. 711) ; Shapleigh Hardware Co. v. McCoy, 23 Ga. App. 265 (98 S. E. 102) ; Barrow v. Georgia Chemical Works, 34 Ga. App. 31 (128 S. E. 14) ; Davis v. Citizens-Floyd Bank & Trust Co., 37 Ga. App. 275 (2) (139 S. E. 826). There was some evidence to authorize the application of this principle in the instant ease.

2. Where a broker induces another to buy corporate stock, by contracting to resell the stock at a stated price within a reasonable time, and fails to sell the stock as promised, he will be liable in damages to the purchaser for the difference between the price at which he was to resell the stock and its value at the time he should have sold it. King v. Brice, 145 Ga. 65 (3) (88 S. E. 960) ; Phosphate Mining Co. v. Atlanta Oil & Fertilizer Co., 20 Ga. App. 660 (4) (93 S. E. 532) ; Cannon v. Atlanta Warehouse Co., 25 Ga. App. 350 (103 S. E. 186) ; Hokanson v. Western Empire Land Co., 135 Minn. 74 (155 N. W. 1043, L. R. A. 1917C, 761, and note).

3. But in a suit against the broker to recover damages for a breach of the contract, the burden is upon the plaintiff to prove the damages sustained. In this ease the allegation was that the defendant should have sold the stock by June 25, 1925 (compare New Zealand Fire Ins. Co. v. Brewer, 29 Ga. App. 773 (6), 116 S. E. 922). The petition alleged and the jury formd that the stock was worthless on that date, the plaintiff recovering a sum equivalent to the entire amount at which the stock was to be resold. The only proof tending to show that the stock was valueless at that or any other time was evidence that the corporation issuing the stock was adjudicated a bankrupt on December 5 of the same year. Held, that this evidence was insufficient to establish that the stock was without a market value more than five months previously, when the defendant should have sold it. The verdict in favor of the plaintiff was therefore unauthorized, and the court should have granted a new trial. See, in this connection, Brandt v. Buckley, 27 Ga. App. 515 (109 S. E. 692) ; 22 C. J. 92.

Judgment reversed.

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


text:
    19220.
    Wrightsville & Tennille Railroad Co. v. Barrett.
   Bell, J.

1. In a suit against a railroad company for damage by fire to certain timber, where the petition alleged that the fire was set out “on the afternoon of September 6, 1925, at about 3 o’clock p. m.,” by sparks and live coals escaping from the engine “pulling the south-bound train of the defendant,” it was permissible to amend the petition by striking these allegations as to time and the identity of the engine and by inserting in lieu thereof an averment that the fire originated on September 4, 1925, at about 11 o’clock a. m., from an engine pulling a north-bound train. The cause of action declared upon was the identical damage or injury to the timber, and an amendment which changed the allegations as to the time of its occurrence and as' to the means or instrument with which the defendant caused it was not objectionable as adding a new and distinct cause of action. Harris v. Central Railroad, 78 Ga. 525 (3 S. E. 355) ; City of Columbus v. Anglin, 120 Ga. 785 (5) (48 S. E. 318) ; Venable v. Burton, 118 Ga. 156 (45 S. E. 29).

2. Where a witness testified that he saw the particular engine when it passed the point at which the fire originated, and saw some live fire coming out of the smokestack, and that “when the fireman would throw in coal some would blow out the smokestack;” and that they looked to be as large as the witness’s finger, and fell in “flakes” on the right of way, and where the evidence in regard to the kind and condition of the spark-arrester tended to show that ignited particles of such description would not escape from an engine equipped with a proper spark-arrester in good condition, there was presented an issue of fact as to whether the engine was equipped with a standard spark-arrester in good condition on the occasion in question. Southern Ry. Co. v. Smith, 21 Ga. App. 814, 818 (95 S. E. 328) ; Louisville & Nashville R. Co. v. Studdard, 34 Ga. App. 570 (130 S. E. 532) ; Southern Railway Co. v. Herrington, 128 Ga. 438 (57 S. E. 694).

3. The present suit was in two counts, the plaintiff in each count claiming damage to a separate and distinct ^tract of timber as the result of distinct acts of negligence on the part of the defendant. The defendant complains of an instruction wherein the court charged the jury in effect that upon proof “that the injury as alleged in the petition took place at the hands of the railroad company,” the presumption would then arise that the company was negligent in every particular alleged in the petition. Held, that this instruction was not erroneous as against the railway company upon the ground that it gave to the plaintiff the benefit of such presumption as to all acts of negligence as charged in the entire petition, merely upon proof of the injury as alleged in one or either count of the petition. On the other hand, under such charge no presumption would arise against the defendant unless the plaintiff had first established the injury as alleged in both counts; and in this view the defendant was favored rather than prejudiced by such instruction.

(a) Moreover, the court instructed the jury that the suit was in two counts and constituted virtually two cases, and the excerpt complained of could pot reasonably have been understood by the jury as meaning that upon proof of the damage alleged in either count the defendant would be presumed negligent in all the respects alleged in both counts.

Decided April 11, 1929.

R. M. Raley, J. E. Hyman, for plaintiff in error.

E. W. Jordan, contra.

4. The true measure of damage in a case of this kind “is the diminution in the market value of the realty, unless the value of the trees at the time and place of their being felled, plus the incidental damage to the realty, exceeds the diminution in market value of the land; in which event the plaintiff is entitled to claim the higher measure. See Central R. Co. v. Murray, 93 Ca. 256 (20 S. E. 129); L. & N. R. Co. v. Kohlruss, 124 Ca. 250 (52 S. E. 166); Western & A. R. Co. v. Tate, 129 Ca. 531 (59 S. E. 266).” Milltown Lumber Co. v. Carter, 5 Ca. App. 344 (2), 349 (63 S. E. 270). The court’s instructions on the subject of the measure of damage contained no error as against the defendant.

5. The evidence amply authorized the verdict found for the plaintiff and in the amount awarded; and no material error having been committed during the trial, the judgment refusing a new trial can not be disturbed by this court.

Judgment affirmed..

Jenkms, P. J., and Stephens, J., eoneur.


text:
    19227.
    Bussell v. Savannah Guano Company.
    Decided April 11, 1929.
    I. J. Bussell, for plaintiff in error, Parker & Parker, contra.
   Bell, J.

The Civil Code (1910), § 6160, requires that a bill of exceptions be served upon the opposite party within ten days after it is signed and certified. Accordingly, where a bill of exceptions was certified on April 26, 1928, and service thereof was acknowledged on May 28, 1928, by a writing signed by the attorneys for the defendant in error, as follows: “We, the undersigned, as attorneys of record for defendant in error in above-stated case, hereby acknowledge service of a copy of the hereto attached bill of exceptions in said case, but expressly decline to waive the time for the making of such service, and expressly say that said bill of exceptions should be dismissed for want of service within the time provided by law,” the bill of exceptions must on motion be dismissed for want of timely service. Park’s Annotated Code of Georgia (1914), § 6164(a), Ga. L. 1911, p. 149; Reynolds Banking Co. v. Beeland, 142 Ca. 242 (2) (82 S. E. 662) ; Burney v. Southern Express Co., 144 Ga. 545 (87 S. E. 652) ; Webb v. Deadwyler, 149 Ca. 220 (99 S. E. 888).

Writ of error dismissed.

Jenkins, P. J., and Stephens, J., eoneur.