text:
    18106.
    FIRE ASSOCIATION OF PHILADELPHIA v. COOPER.
    There was not sueli evidence of refusal of the insurance company to pay the loss in question as would relieve the plaintiff from proving that proper proofs of loss had been made; and the verdict in his favor was unauthorized.
    Fire Insurance, 26 O. J. p. 518, n. 62, 65; p. 544, n. 21, 29.
    Decided June 14, 1927.
    Garnishment; from city court of Polk county—Judge Tison. April 5, 1927.
    The only witness who testified in regard to proof of loss or refusal to pay was W. A. Colquitt, who stated that he was a member of the firm that wrote the insurance policy. He testified: “After that policy was written there was a fire or loss on the part of the property insured. Thompson [the insured] notified me. I immediately sent a loss notice to the company. The representative came here to look over the situation. . . He discussed the matter with me. As to whether I made any demands for the payment of this policy, I exchanged several, letters and called over long-distance telephone about this policy, but I haven’t kept any copies or records and couldn’t tell just exactly the wording of the demands. I tried to get them to adjust this loss with Dr. Cooper [the plaintiff], and they refused. . . The adjuster came promptly after I sent him the notice. The loss never has been settled. He never gave me any notice that there was any adjustment made or that he would adjust it. They always left the impression with' me that it would not be adjusted, would not be paid; just refused to pay it from the beginning. I would like to say that what I wanted to bring out was that whoever the adjuster was led me to believe that he couldn’t recommend the payment of the policy. I was representing the assured as well as the company; I was interested in both parties. . . As to what complaint did any representative of the company ever make in regard to this loss, that no sufficient proof had been filed in regard thereto, there had been no such complaint made to me. I would like to state, if I stated the company had refused to pay it, I would like to modify that. They had been putting it off, stating that the fire marshal was investigating. . . As to whether he told me he would pay or not, no, he never did say positively whether, they would or would not. . . I never had any notice or letter or anything from any officer or agent of the company saying that they would not pay it. I never told Mr. Thompson that the company declined to pay the loss. . . I never have myself, or as transmitting an order or direction from any other representative of the company, denied liability under the policy or refused to pay it. . . As the local agent of -the company I have no authority whatever to adjust claims. . . My duties are solely to write and collect for the policies. . . As to what kind of notice of this loss I sent in to the company, I wouldn’t swear positively. . . The notice I sent in was just a notice that the fire had occurred. There was no sworn proof of loss sent in by me, and none was ever made to me. None was ever demanded. I insisted on adjustment of the matter. . . They never claimed that there was no proof of loss; in fact I never filed a sworn proof of any loss I ever had.”

      Smith, Hammond & Smith, J. M. B. Bloodworth, Mundy & Wathins, for plaintiff in error. John X. Davis, contra.
   Luke, J.

J. J. Cooper sued out an attachment against B. A. Thompson, and the attachment was levied by serving a summons of garnishment upon the Fire Association of Philadelphia. The controlling question is whether or not, on the trial of the issue raised by his traverse of the insurance company’s answer to the garnishment, the plaintiff carried the burden of excusing himself from proving that proper proofs of loss had been made, by showing a refusal to pay by the insurance company. A careful study of the record discloses that this burden was not carried; and the court erred in overruling the motion for a new trial.

Judgment reversed.

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


source: Caselaw Access Project

author: Bloodworth, J.

license: Public Domain

text:
    18107.
    GEORGIA UTILITIES COMPANY v. WARD et al.

    1. Prejudicial remarks of tlie judge to counsel, even “though the remarks contain an expression of opinion,” where there is no motion for a mistrial, are not cause for a new trial.
    2. There was no error in refusing to allow a witness to testify that he “was going to put the current from this same transmission ’line that traversed his farm and Mr. Ward’s farm [the farm of the defendant] to various uses on the farm of the witness.”
    3. The excerpts from the charge, of which complaint is made in the amendment to the motion for a new trial, are not erroneous.
    Eminent Domain, 20 O. J. p. 983, n. 58; p. 1016, n. 73; p. 1017, n. 74.
    New Trial, 29 Cyc. p. 771, n. 88.
    Trial, 38 Cyc. p. 1325, n. 11.
    Decided June 14, 1927.
    Appeal; from Catoosa superior court—Judge Pittman. April 4. 1926.
    Application for certiorari was made to the Supreme Court.

      Grady Head, Maddox, Maddox & Mitchell, for plaintiff.

      William E. & Gordon Mann, for defendants.
   Bloodworth, J.

Georgia -Utilities Company instituted proceedings to condemn certain lands of-M. V. Ward on and across which was to be erected a line to be used in transmitting electric power. As provided by law, arbitrators were appointed, they made an award, and from this award an appeal was taken to the superior court. There the verdict of the jury ivas in favor of Ward. The Georgia Utilities Company made a motion for a new trial, and when that was overruled the case was brought here for review.

A ground of the amendment to the motion for a new trial alleges that “the court erred, during the trial of the case and in the presence and hearing of the jury, in intimating an opinion that the Georgia Utilities Company was not proceeding fairly in this condemnation proceeding.” From “the character of the remarks it is assumed that the remarks were made to counsel touching certain questions of law and fact. And where statements are made to counsel in this way, and not as a portion of the court’s charge to the jury, they will not be good ground of a motion for new trial, unless a motion for a mistrial was made, though the remarks contained an expression of opinion which would not be permissible in the charge to the jury. Moore v. McAfee, 151 Ga. 270 (106 S. E. 274).” Barnett v. Strain, 151 Ga. 554 (5) (107 S. E. 530). The principle just announced has been adhered to by both this and the Supreme Court since the rendition of the decision in Perdue v. State, 135 Ga. 277 (69 S. E. 184); Tanksley v. State, 35 Ga. App. 189 (132 S. E. 263).

The second headnote needs no elaboration.

The excerpts from the charge to which reference is made in the 6th and 7th grounds of the motion for a new trial are as follows: “I charge you that you should not consider advantages which may be sustained by other than the defendant, whether by the Town of Ringgold or by other sections of our country, by reason of the erection of the’ transmission line in question.” “I charge you that the effect of this condemnation proceeding, when it shall be concluded, is not to vest in the plaintiff company a fee-simple title to the hundred-foot strip of land across which-certain easements are sought to be condemned by the plaintiff company, but to vest in the plaintiff company the right to construct over and across this hundred-foot strip a certain line for the purpose of transmitting electricity thereover, the erection of certain poles or towers as described therein, and for the maintenance in future of this line as set out in the notice which has been served on the defendant in this case, and under the notice so served, as amended in the amendment which has been on this date allowed by the court, the title to the land remains in the defendant. He has the right to any and every use thereof which is not inconsistent with the easement and rights which are in this proceeding sought to be condemned by the plaintiff. He has, however, or will have, after the conclusion of this proceeding, no right to use any of this hundred-foot strip of land which would be inconsistent with the easement which is herein sought to be condemned by the plaintiff, or which would interfere with the proper construction and maintenance of the power line which the plaintiff company proposes to erect, or has erected, across this particular strip of land.” These portions of the charge are not erroneous.

There is ample evidence to support the finding of the jury.

Judgment affirmed,.

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


author: Per Curiam.

text:
    17865.
    BUGG, receiver, v. KIRKLAND.
    1. The petition as amended set out a cause of action, and the court properly overruled the demurrer thereto.
    2. There was sufficient evidence to authorize the verdict, and the motion for a new trial shows no cause for a reversal.
    Railroads, 33 Cyc. p. 1352, n. 96; p. 1381, n. 63; p. 1394, n. 32.
    Decided June 15, 1927.
    Damages; from city court of Douglas—Judge Roberts. November 4, 1926.
    Application for certiorari was denied by the Supreme Court.

      Brandon & Hynds, Slater & Moore, for plaintiff in error.

      Dickerson & Kelley, Quineey & Quincey, contra.
   Per Curiam.

David Kirkland procured a verdict and judgment against B. L. Bugg, receiver of the Atlanta, Birmingham & Atlantic Railway Company, for damages alleged to have been caused to the plaintiff’s sawmill by a fire set out by engine number 60 of the railway company. The petition as amended alleged that said sawmill was located about one foot south of the right of way of the railway company; that the defendant had piled, or permitted to be piled, a quantity of fat lightwood between its tracks and the sawmill, and had negligently allowed a large quantity of highly inflammable trash to accumulate on the right of way up to and around the pile of lightwood; and that the de.Cendant was negligent: (a) in permitting the lightwood to be piled on the right of way; (&) in allowing the trash to accumulate and remain on the right of way in close proximity to the sawmill; (c) in not using ordinary care in keeping the railway track and right of way, adjacent to the sawmill, free from inflammable material; (d) in permitting live sparks to fall from the engine upon said combustible material; (e) in permitting fire to be dropped from the defendant’s fire-box and smoke-stack upon said trash and pile of wood, which fire ignited the same and set fire to the sawmill; (f) in not having the engine equipped with a spark-arrester of the proper make and kind and in'proper state of repair, and with other appliances designed to prevent the escape of fire from the engine; (g) in that the spark-arrester on the engine was defective in having lióles through which coals, sparks, and fire were thrown out while the engine was in operation; (h) in failing to use proper care in operating the engine; (i) in so negligently handling the engine as to cause it to improperly exhaust and throw out fire and sparks upon said combustible trash and wood, and to ignite the same, and to cause the burning of the sawmill.

There was evidence that the train of the defendant company, when it passed the sawmill on the occasion of the fire, was running up-grade and was “exhausting;” that “an engine is more liable to throw more sparks when it is exhausting than when not;” that “the purpose of that netting [introduced by the defendant company] is to keep an engine from throwing fire and setting grass or anything else afire where a spark might go through to set fire. That is not the best kind in general use,—it is not closely woven,— that netting should not be in an engine,—that netting would permit sparks to go through there and set fire to anything.” Also, that “live sparks will go through that netting when the engine is in operation.” There was evidence that on previous occasions fire had started just after the passing of the defendant company’s train which was equipped with the same kind of netting used by the defendant company on the occasion of the fire in question. The evidence also shows that the defendant company had permitted trash to accumulate on its right of way; that “the fire was burning from the railroad back south through the mill shelter and mill; . . the side of the wood was on fire nearest the railroad down at the bottom.”

There was sufficient evidence to authorize the jury to find that the engine of the defendant company was not properly equipped, and that on this occasion it was throwing sparks and set fire to the plaintiff’s mill. The motion for a new trial shows no cause for a reversal of the judgment of the trial court.

Judgment affirmed.

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


author: Bloodworti-i, J.

text:
    17993.
    LOWTHER v. MITCHELL.
    1. The court erred in giving to the jury the instructions complained of in the motion for a new trial.
    2. Questions of fact on material issues, where the evidence is conflicting and does not demand a particular verdict, should be submitted to the jury.
    Trial, 38 Cyc. p.' 1568, n. 98; p. 1575, n. 27, 29, 30.
    Decided June 15, 1927.
    Rehearing denied July 14, 1927.
    Breach of contract; from city court of Atlanta—Judge Dorsey. December 21, 1926.

      Bryan & Middlebrooks, John A. Bunaway, for plaintiff in error.

      Kendrick L. Scott, George L. Bell Jr., Little, Powell, Smith & Goldstein, contra.
   Bloodworti-i, J.

On January 7, 1924, 0. H. Lowther made to Mrs. L. T. Mitchell a written offer to purchase from her a certain residence and several lots in the City of Atlanta, .for which he agreed to pay $27,000, and did pay “$500 on earnest money and purchase-price” on the property. On January 10, 1924, Lowther advised Mrs. Mitchell in writing “that he would not go ahead with said contract.” Later Mrs. Mitchell sued Lowther for $5000 damages, alleging that this amount was “the difference between the contract price and the market value” of the property, and that “the defendant was without legal reason to break said contract, and plaintiff has never agreed to said action of the defendant.” The defendant filed pleas in which he denied liability, and further alleged that he had been led to sign said sales contract by false and fraudulent representations made to him by one Stanton, salesman for Turman-Brown Company, real-estate agents, and that Stanton was the agent of Mrs. Mitchell and was acting for her, and that after the defendant had signed' the contract he discovered many objectionable features about the property, and that “these facts were known to the plaintiff and her agents and representatives, and were not known to this defendant and were withheld from him.” The trial resulted in a verdict for the plaintiff, and upon the overruling of the defendant’s motion for a new trial he excepted.

A ground of the motion for a new trial alleges that the court erred in charging the jury as follows: “It is unnecessary to go through all the details of the pleadings in the statement to you, because the court directs the jury that in the case the plaintiff is entitled to recover, provided she was damaged. So it is unnecessary to call your attention to all the details of the pleadings, or the different subjects which have been eliminated by the rulings of the court.” Under the facts of this case this charge was erroneous, in that it in effect directed a verdict as to liability, and it withdrew from the jury certain material issues of fact, where the evidence was conflicting and did not demand a particular verdict, and left with the jury only the question of whether or not there was any damage, and if so how much. Brown v. Caylor, 144 Ga. 302 (4) (87 S. E. 295); Fielder v. Davison, 139 Ga. 509 (6) (77 S. E. 618); Culver v. Wood, 138 Ga. 60 (4) (74 S. E. 790); Blade v. Middle Georgia & Atlantic Ry. Co., 104 Ga. 561 (31 S. E. 404).

Whether or not Turman-Brown Company and Stanton, their salesman, were agents of Mrs. Mitchell and acted for her in the sale of her property to Mr. Lowther, and whether or not Mrs.- Mitchell, if she did not in the first instance actually employ these people to sell her property, did thereafter by her conduct and by accepting the benefit of their services thus become responsible for their acts as her agents, and whether or not Mr. Lowther exercised reasonable diligence in inspecting and examining the Mitchell property, were all questions of fact on material issues, on each of which there was conflicting testimony, and each of which should have been submitted to the jury.

Judgment reversed.

Lulee, J., concurs. Broyles, G. J., disqualified.


text:
    18003.
    General Motors Acceptance Corporation v. Holloway.
    Sales, 35 Oye. p. 555, n. 77, 79.
    Decided June 15, 1927.
    Complaint; from city court of Fort Gaines—Judge Turnipseed. January 21, 1927.
    L. M. Holloway bought from J. E. Martin a “Delco Light Plant” under a conditional-sale contract in which the purchaser promised' to pay $586.74 as balance due on the purchase-price. The contract was assigned by Martin to General Motors Acceptance Corporation, which sued Holloway thereon for the balance stated. The defendant filed an answer, which was amended, and the plaintiff demurred to it and moved to strike it on the ground that no legal defense was set forth therein, and that the suit was based on a promissory note which, as appeared from the petition, was received by the plaintiff in due course before maturity and for value. The court overruled the demurrer, and the trial resulted in a verdict for the plaintiff in an amount less than that sued for. The plaintiff’s motion for a new trial was overruled, and it excepted to that judgment, as well as to the overruling of its demurrer to the answer. ' In the original answer the defendant denied the paragraph of the petition as' to the execution of the contract and the indebtedness due thereon, and alleged that he bought from the plaintiff a certain Delco lighting system complete, with all attachments and equipment, delivered at Coleman, Georgia, but that it came with the freight charges attached; that the defendant immediately called the plaintiff’s attention to this fact, and the plaintiff instructed him to pay the freight and deduct it from the purchase-price; that he paid the freight charges, amounting to $46.39, and the plaintiff afterwards refused to allow them on the purchase-price. It was further alleged that when the defendant went to install the plant he found that the attachments and equipment which went with it were lacking, and he immediately called the plaintiff’s attention to this, and the plaintiff instructed him to buy the necessary attachments, and agreed to allow a deduction on the contract price for the equipment which the defendant had to buy in order to install the plant, amounting to $52.39; that a set of extra fixtures which were a part of the equipment of the plant and which were not furnished by the plaintiff were of the value of $35; and that the defendant “was ready and willing to pay said contract note when due if the plaintiff had allowed the deductions above set out, and is still willing and ready to pay it if the said deductions were allowed.”
   Per Curiam.

The answer of the defendant as finally amended set out no legal defense whatever to the plaintiff’s suit, and the court erred in refusing to strike the answer on motion of the plaintiff. That error rendered the further pToceedings in the case nugatory.

Judgment reversed.

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

In the first amendment to the answer it was alleged, in substance, that on the date of the'contract in this case J. E. Martin and one Beeves were agents for the plaintiff, and Beeves came to the defendant’s home, seventeen miles from the headquarters of the agency maintained by the plaintiff, and represented to the defendant that he and Martin were the plaintiff’s agents and that they would put in for the defendant a complete Delco light plant and water system for $586.74. Defendant was unacquainted with said system and knew nothing about electricity or the water system, being only a farmer, and had to rely and did rely upon the representations of Beeves as to what it would do. Various representations are set out, which it was alleged Beeves guaranteed, and said were guaranteed in the printed contract which he would sign, “by the Consolidated Motors Company.” It was alleged that Beeves hurried the defendant, told him he was obliged to catch a train which would soon be due, and when defendant requested that he be allowed to read the contract Beeves stated that he did not have time to wait for him to read it, that what he had stated was in the written contract, that the price of the system was going up, and that unless the defendant ordered then he could not get one at the same price; whereupon the defendant, believing what he said, signed the paper presented and gave him a note for $100 as the cash payment, 'and Beeves “immediately rushed;” that Beeves promised to send him a copy of the contract, but he never received it, and did not know of the contrary provision in it until he was sued on it. It was alleged that the system installed was defective in particulars stated, that it would not generate the current that it was guaranteed to generate, that the defects were latent, and, although the defendant had various mechanics work upon it, the defects were not corrected and the plant was useless to him; that it was not worth more than $100 as it stood (the contract price was $755.34); that the plaintiff quit making that kind of system, on account of its being unsatisfactory, and the defendant could not get parts or repairs for thj machinery. It was alleged that the representations made by said agent to defendant in order to sell the said outfit were false and fraudulent, and deceived and defrauded him, and he was induced thereby to sign the said paper. It was further alleged that the plaintiff was the real seller of the machinery, and that the paper was made payable to Martin and later transferred by him to the plaintiff as a part of a scheme to make it appear that the plaintiff was an innocent purchaser of the paper; so that a worthless light system might be sold to the defendant and he would be prevented from setting up his defense against a suit for the price; and that the paper sued on therefore is not the contract of the defendant. It was alleged that the air-compressor on the pump, which was valued at $200, was absolutely worthless and worrld not operate, and that the defendant offered to return it, but the plaintiff refused to accept it back. . “Wherefore defendant prays judgment for said $46.39 and $52.39 so paid, and that .the $100 be allowed plaintiff as the full value of said machinery, or that he stands ready to return said outfit to plaintiff and ask a judgment for his $100 paid and $46.39 and $52.39, and that he have judgment against plaintiff.” In an additional amendment it was stated that the contract showed no express warranty, and therefore the defendant pleaded an implied warranty as to the lighting outfit and pump; and it was further alleged that the agency of Martin was in the nature of a del credere agency, and, although the note was made to him as principal, he was selling for a commission and was agent. It was alleged that the defendant could neither read nor write, except his name, and had to rely on the representations of Martin and Keeves and did rely on them.

P. G. King, Lowrey Stone, for plaintiff in error.

IV. B. King, A. L. Miller, contra.


author: Broyles, C. J.

text:
    18060.
    FULTON PROPERTIES COMPANY INC. v. ZORN.
    1. The evidence authorized a recovery by the plaintiff. (Broyles, O. J., ' dissents.)
    2. It does not appear that the verdict is excessive.
    Damages, 17 O. J. p. 1091, n. 85.
    Landlord and Tenant, 36 C. J. p. 253, n. 47.
    Decided June 15, 1927.
    Damages; from city court of Atlanta—Judge Humphries presiding. March 4, 1927.
    Application for certiorari was made to the Supreme Court.

      Bryan & MiddlebrooTcs, for plaintiff in error.

      Hewlett & Dennis, contra.
   Broyles, C. J.

This was a suit for damages for personal injuries, brought against the owner of an apartment house by the servant of a tenant of the house. The plaintiff was given a verdict for $4000. The defendant’s original motion for a new trial contained the usual general grounds, and an additional ground that the amount of the verdict was excessive and showed bias on the part of the jury. The grounds of the amendment to the motion for a new trial were merely elaborations of the general grounds.

The majority of this court think that the evidence authorized the jury to find that the defendant was guilty of one or more of the acts of negligence charged in the petition, and that the plaintiff, by the exercise of ordinary care, could not have avoided the consequences of that negligence. The'writer dissents from this ruling. Conceding that the defendant was negligent as charged, the vital and controlling issue raised by the pleadings and the evidence was whether the plaintiff, by the exercise of ordinary care, could have avoided being injured. The plaintiff (who was the only person present when the injuries were inflicted) testified in her own behalf, and her evidence touching that issue was exceedingly confused and self-contradictory. Parts of it showed that she was- exercising ordinary care when she was injured, while other portions demanded a finding that she failed to take such precautions for her safety as, under the circumstances, an ordinarily prudent person would have taken. “If a plaintiff testify in his own behalf, and there are material conflicts and contradictions in his testimony, he is not entitled to recover, unless that portion of his testimony which is least favorable to his contention is of such a character as to authorize a recovery in his behalf(Italics mine.) Horne v. Peacock, 122 Ga. 45 (2) (49 S. E. 722). See also Western & Atlantic R. Co. v. Evans, 96 Ga. 481 (23 S. E. 494). Freyermuth v. South Bound R. Co., 107 Ga. 31 (32 S. E. 668); Southern Bank v. Goette, 108 Ga. 796 (2) (33 S. E. 974); Atlanta Railway & Power Co. v. Owens, 119 Ga. 833, 835 (47 S. E. 213). Applying the ruling in the Horne case, supra, to the facts of the instant case, the writer’s opinion is that a recovery by the plaintiff was unauthorized and that a new trial should have been granted.

Under all the facts of the case this court can not hold as a matter of law that the amount of the verdict ($4000) is so large as to show bias or prejudice on the part of the jury.

Judgment affirmed.

Luke and Bloodivorth, JJ., concur. Broyles, G. J., dissents.


text:
    18069.
    MITCHELL v. THE STATE.
    1. Under previous rulings applied to the facts of the case, an omission to instruct the jury upon the “second branch” of the rule as to the defense of alibi was not error.
    2. The charge substantially informed the jury as to their duty to consider the evidence of alibi with all the other evidence, and to acquit the accused if such consideration raised a reasonable doubt of his guilt; and it was not open to the criticisms presented.
    3. The evidence authorized a conviction of robbery.
    Criminal Law, 16 C. J. p. 976, n. 42; p. 977, n. 52, 53; p. 988, n. 80; p. 1056, n. 20; p. 1057, n. 26; p. 1058, n. 32; p. 1059, n. 42. .
    Decided June 15, 1927.
    Robbery; from Fulton superior court—Judge Moore. February 19, 1927.
    Application for certiorari was denied by -the Supreme Court.

      Branch & Howard, J. G. Miner, for plaintiff in error.

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

“When the court had fairly and correctly charged the doctrine of reasonable doubt as applicable to all the evidence in the case and the statement of the defendant, there was no error in failing to charge the special proposition that if the evidence offered in support of the defense of alibi, even though insufficient to establish that as a substantive defense, yet, when taken in connection with all the other evidence in the case, raised a reasonable doubt of guilt, the jury should acquit. Especially is this true where no request was made to the court to so instruct the jury. Shaw v. State, 102 Ga. 665 [29 S. E. 477].” Bass v. State, 1 Ga. App. 728 (4) (57 S. E. 1054); Tooke v. State, 25 Ga. App. 248 (2) (102 S. E. 995). Under this ruling and the facts of the instant case, the failure of the court to instruct the jury upon the “second branch” of the rule as to alibi was not error.

While it is well settled that the judge, when charging upon the law of alibi, should give substantially the rule as laid down in Ledford v. State, 75 Ga. 856 (3), and Harrison v. State, 83 Ga. 129 (3), 134 (9 S. E. 542), there is no fixed formula for such instruction. However, the charge given should substantially inform the jury that they should consider the evidence touching the alibi together with all the other evidence in the case, and that if such consideration raises a reasonable doubt of the defendant’s guilt, he should be acquitted. In the instant case the charge substantially so informed the jury, and, as was said by Chief Justice Bleckley in Harrison v. State, supra, “Under these instructions, the jury, we think, must have felt it incumbent upon them to give the prisoner the benefit of any and all reasonable doubt upon summing up the entire evidence, including that relating to the alibi; and this, in the present state of the Georgia authorities, seems to be sufficient.” The charge in the instant case is not subject to the criticism made by the majority of this court on the charge in Brooks v. State, 25 Ga. App. 739 (105 S. E. 42), and on the charge in Henderson v. State, 27 Ga. App. 628 (110 S. E. 522).

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

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


author: Stephens, J.

text:
    17596.
    Jones v. Warlick.
    Certiorari, 11 C. J. p. 185, n. 89; p. 186, n. 90; p. 192, n. 21.
   Stephens, J.

The magistrate, whose decision in this case is sought to be reviewed in, a petition for certiorari, not having been served with the petition within the legally required time, and not having made answer, thereto, and it not appearing that the failure to sei-ve the magistrate was due to no fault or negligence on the part of the plaintiff in certiorari, the judge of the superior court did not err in overruling the motion made by the plaintiff in certiorari to be permitted to perfect service upon the magistrate, and did not err in sustaining the motion of the defendant in certiorari to dismiss the petition. Zachery v. State, 106 Ga. 123 (32 S. E. 22); Ryals v. County Commissioners of Tattnall County, 12 Ga. App. 221 (77 S. E. 8).

Decided July 13, 1927.

Certiorari; from Floyd superior court—Judge Maddox. June 5, 1926.

Ilenry Walker, for plaintiff. Porter & Mebane, for defendant.

Judgment affirmed.

Jenlvins, P. J., and. Bell, J., concur.


author: Bell, J.

text:
    17634.
    MORRISON v. FINKOVITCH INCORPORATED.
    1. The remedies provided by section 4131 of the Civil Code (1910), for a seller of goods, on the purchaser’s breach of the contract of sale, are not exhaustive, nor is the seller in every such case limited to one of the measures of damage stated in that section. Carolina Cement Co. v. Columbia Improvement Go., 3 Qa. App. 483 (60 S. E. 279) ; United Roofing Co. v. Albany Mill Supply Co., 18 Qa. App. 185 (89 S. E. 177).
    2. Where, on receipt of an order for goods, the seller delivered the goods as ordered to a common carrier, for transportation to the purchaser, and where the purchaser, after delivery to and acceptance by him had been completed, delivered the goods back to the carrier with instruction to return them to the seller, and where the seller accepted the returned goods, not in satisfaction of the contract, but in order to save them from loss and to reduce the damages resulting from the purchaser’s failure to keep and pay for the goods, in an action for damages by the seller against the purchaser an instruction to the jury to .the effect that the measure of damages was “the difference between the contract price on the date of the purchase and the market value upon the date of the delivery back to the consignor” was not erroneous as against the defendant upon the ground that it did not state the measure of damages correctly, in that the correct measure was the difference between the contract price and the market price at the time and place of delivery.

      (a) Applying these rulings, the verdict in favor of the plaintiff was authorized, and the court did not err in refusing a new trial.
    Pleading, 31 Cyc. p. 756, n. 79.
    Sales, 35 Cyc. p. 583, n. 46; p. 592, n. 53; p, 631, n. 12; p. 650, n. 11.
    Decided July 13, 1927.
    Breach of contract; from city court of Savannah—Judge Rourke. July 9, 1916.

      George H. Richter, for plaintiff in error.

      Mclniire, Walsh & Bernstein, contra.
   Bell, J.

In 1920, P. B. Morrison, of Savannah, Georgia, gave an order for six cases of shoes to M. Finkovitch Incorporated, of Boston, Massachusetts, to be shipped f. o. b; Boston, and they were shipped accordingly. In this suit by the seller against the purchaser, for damages alleged to have resulted to the plaintiff from the defendant’s failure to keep and pay for the goods, the jury returned a verdict in favor of the plaintiff. The defendant’s motion for a new trial was overruled and he excepted. The attorney for the defendant (here the plaintiff in error) admits that the jury were authorized to find in the plaintiff’s favor on the question of the defendant’s breach of the contract, but, relying upon other contentions made in the motion for a new trial, insists that the court erred in charging the jury that the correct measure of damages was “the difference between the contract- price on the date of the purchase and the market value upon the day of delivery back to the consignor,” and further urges that, because there was no proof of the value of the goods at Savannah, the evidence was not sufficient to authorize the jury to determine upon any amount as the plaintiff’s damage. The only exception to the charge is that it did not state the measure of damages correctly, in that the correct measure was the difference between the contract price and the market price at the time and place of delivery, the defendant’s contention being that Savannah was such place of delivery.

The defendant purchaser received the goods from the carrier on May 12 and kept them until May 20. He then delivered them back to the carrier with instructions to return them to the seller, by whom they were received on June 2. The seller reshipped them to'the purchaser, who returned them a second time to the seller. The goods then remained in the hands of the carrier for several months, after which the seller accepted and resold them in order to avoid a sale of them by the carrier for freight charges.

The original sale was by sample, but the jury by their verdict have said that the goods were of the kind and quality ordered, and hence that the defendant was not justified in returning them. Nor is any question raised as to whether the time and opportunity for inspection which the defendant had between May 8 and May 20 were not, as a matter of law, sufficient for that purpose, so that the delivery should be regarded as having been fully completed prior to the defendant’s return of the goods on May 20; and such complete delivery will therefore be taken as an undisputed fact in the record.

. There was evidence of the value of the goods in Boston on June 2, the date they were first received back by the plaintiff at .that place, so that the real, and controlling question is raised by the exception to the charge' of the court.

The remedies provided to the seller under section 4131 of the Civil Code áre nqt exclusive, and the rule which under one election allows a recovery of the difference between the contract price and the market price at the time and place of delivery is founded upon the just theory that the seller, on the rejection.of the goods, may take them into the open market and obtain the* current price for them. Groover v. Warfield, 50 Ga. 645. It thus seems that the rule just referred to would be inapplicable where the purchaser, instead of merely refusing to accept the goods, takes them from the carrier, and, after delivery to and acceptance by him have been completed, seeks, without right, to relieve himself from liability by reshipping the goods to the seller, although in the meantime the market value may have been constantly declining. In such a case, the purchaser by his conduct makes it impossible for the seller to dispose of the goods in the open market at the time for delivery contemplated by the contract, and thus renders inappropriate the measure of damages which the defendant contends was the proper measure in this case. Where, as here, no contention being made by the plaintiff in error to the contrary,' the seller is to be taken as having accepted the returned goods only for the purpose of saving them from loss and thus of reducing the damage resulting from the purchaser’s act in repudiating the contract, the defendant can not complain if the market price be reckoned as of the date and place of redelivery to the seller. We thus conclude that, under the peculiar facts of this case, the excerpt from the court’s charge was not erroneous upon the ground that it did not correctly state the measure of damages. If this conclusion is sound, it follows that the evidence authorized the verdict, and that the court did not err in refusing a new trial. In holding that the charge was not erroneous upon the ground assigned, we rule nothing, of course, as to whether it might not have been subject to some other exception, and say only that it was not error as against the defendant. In the view which we have taken, it is unnecessary to determine whether, if the defendant had merely rejected the goods, Savannah and not Boston should have been considered as the place of delivery for the purpose of determining the plaintiff's damage under section 4131 of the code. In this case we have assumed with the plaintiff in error that Savannah was such place of delivery. The present record seems to make a case simply of liability for goods purchased and accepted and then returned, with an obligation on the part of the plaintiff to credit the defendant with the market value of the goods when returned.

The petition may not have been drawn precisely upon the theory upon which we have proceeded in this opinion, but it could have been amended‘to conform to the evidence appearing in the record, and, the evidence having been admitted without objection, there is no fatal variance between the case as laid and that proved. Hence, we have considered the assignments in view of the case as made by the evidence. See Rowland Co. v. Kell Co., 27 Ga. App. 107 (107 S. E. 602); Napier v. Strong, 19 Ga. App. 401 (2) (91 S. E. 579).

Judgment affirmed.

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


text:
    17747.
    POSS BROTHERS LUMBER CO. v. HAYNIE.
    1. “The special lien given by the Civil Code, § 2793 [Code of 1910, § 3335], to laborers,, on the product of their labor, attaches to the property of their employers only.”
    2. Where an owner of timber engages another, as independent contractor, to remove the timber from the woods and saw it into lumber, for a consideration of so much per thousand feet, according to dimensions and specifications to be furnished from time to time by the owner, and where the owner reserves no control of the business thus to be carried on by the other contracting party, and does not interfere and assume such control, servants employed by the latter for the purpose of executing the contract are not employees of the owner of the timber, and lumber manufactured from srxch timber is not subject to a lien in favor of such employees.
    3. In such a case the owner is entitled to see that the work is performed in accordance with, the contract, and to caution both the independent contractor and his employees against waste of the timber, and may exercise these rights as incidents of his contract with the independent contractor, without becoming liable for the wages of the latter’s laborers or rendering the lumber so manufactured subject to a lien in their favor. Such acts, without more, would not amount to an assumption of control of the work, nor to an interference therewith, so as to render the owner or his property liable for the wages of such laborers.

      Logs and Logging, 38 C. J. p. 224, n. 61, 64. Master and Servant, 39 C. J. p. 218, n. 49 New; p. 220, n. 15, 16; p. 223, n. 8 New.

      4. Applying the above rulings, the verdict in this case was unauthorized, and the trial court should have granted a new trial.
    Decided July 13, 1927.
    Lien foreclosure; from city court of Washington—Judge C. E. Sutton. November 8, 1926.

      B. W. Forlson, for plaintiff.

      Colley & Wynne, W. A. Slculon, for defendant.
   Bell, J.

J. E. Haynie, as employee of one Campbell, made an affidavit against Campbell and Poss Brothers Lumber Company as codefendants, for the foreclosure of a laborer’s lien upon lumber belonging to this company. The last-named defendant interposed a counter-affidavit, and now, after verdict in favor of the plaintiff, excepts to the overruling of its motion for a new trial. The evidence showed that the lumber company owned and operated a planing mill, and that Campbell owned and operated a sawmill. The lumber company also owned a body of standing timber, which it engaged Campbell to saw into lumber at stipulated prices per thousand feet, according to the lengths and kinds to be named from time to time by the company. Campbell hired laborers to cut the timber and haul it to his mill. Haynie was foreman of the woods crew and was hired and paid by Campbell. By the terms of the contract between Campbell and the company, the latter was to pay Campbell every two weeks the amount due on the basis of the output of the mill during that time. Campbell overdrew his account with the company from time to time, and finally became so involved financially that he was forced to close down his mill, with his laborers unpaid for the last three weeks. Haynie then instituted the present proceeding, claiming that the company, through its agents, so interfered with the control of the business as to constitute this, .defendant his employer. The plaintiff evidently sought, both in his affidavit and in the evidence submitted, to bring his case within the rulings made by this court in Sattes & Wimer Lumber Co. v. Hales, 11 Ga. App. 569 (75 S. E. 898).

The only evidence on the question of interference on the .part of the owner with the control of the business was testimony to the effect that an agent of the company now and then delivered to Campbell a statement of the dimensions of lumber wanted, and on two or three occasions handed such statements to Haynie or another of Campbell’s employees in Campbell’s presence, and would tell Campbell “to cut the timber and the woods close for the purpose of getting it all,” and that Campbell “thinks” this agent also instructed the employees about “cutting the stumps close and about cutting close up into the tops.” The lumber company was entitled to see that the work was performed in accordance with the contract, and had the right, as owner, to caution against waste of the timber, provided there was no interference as to the particular method by which the work was to be done or as to the means by which the given result was to be accomplished, and it was the privilege of the company to exercise such rights as incidents of the contract, without becoming liable as the master or employer of Campbell’s laborers; so, assuming that the agent of this company did everything he is both said-and thought to have done, that fact alone would not bring about the consequences which the plaintiff is seeking to establish in this case. The courts of this State have repeatedly held that “the mere fact that the employer [owner] may have-had an agent who supervised the work for the purpose merely of seeing that it was done in conformity to the contract, without interfering as to the particular method in which it was to be done or the means bjr which the given result was to be accomplished, would not in law be such control and direction of the work by the employer as would render him responsible.” Quinan v. Standard Fuel Supply Co., 25 Ga. App. 47 (102 S. E. 543).

“The special lien given by the Civil Code, § 2793 [Code of 1910, § 3335], to laborers, on the product of their labor, attaches to the property of their employers only.” Lanier v. Bailey, 120 Ga. 878 (48 S. E. 324), Jonas v. Central Ga. L. Co., 35 Ga. App. 172 (132 S. E. 236). If the lumber in question was ever subject to a lien in favor of any one, it was in favor of Campbell, the contractor. Fox v. Smith, 143 Ga. 547 (85 S. E. 856). But Campbell has been paid, and is not complaining. Whether the present case can be distinguished from the Sattes & Wimer Lumber Co. case, supra, and other decisions of this court cited and relied on by the defendant in error (including McCook v. Brown, 28 Ga. App. 525, 112 S. E. 151; McCook v. Alligood, 28 Ga. App. 812, 113 S. E. 93), a judgment against the plaintiff was demanded, under the following decisions of the Supreme Court: Breed v. Nagle, 46 Ga. 112 (3); Quillian v. Central R. Co., 52 Ga. 374; Baughman Auto Co. v. Emanuel, 137 Ga. 354 (73 S. E. 511, 38 L. R. A. (N. S.) 97); Lanier v. Bailey, supra; the decisions of that court having priority over the decisions of this court as precedents. The judgment in favor of the plaintiff was contrary to the evidence and to law, and the court erred in overruling the motion for a new trial. This ruling appearing to be controlling, it is unnecessary to deal with the special grounds of the motion.

See further, in this connection: Harrison v. Kiser, 79 Ga. 588 (4 S. E. 320); Atlanta &c. R. Co. v. Kimberly, 87 Ga. 161 (13 S. E. 277, 27 Am. St. R. 231; Malin v. Augusta, 29 Ga. App. 393 (2) (115 S. E. 504); Lampton v. Cedartown Co., 6 Ga. App. 147 (64 S. E. 495); L. & N. R. Co. v. Hughes, 134 Ga. 75 (5) (67 S. E. 542); Tallent v. Hunter, 32 Ga. App. 656 (124 S. E. 361); Hobbs v. Broad River Co., 32 Ga. App. 447 (123 S. E. 756); Hardin Lumber Co. v. Allen, 35 Ga. App. 807 (134 S. E. 799);. Zurich Gen. Accident &c. Ins. Co. v. Lee, 36 Ga. App. 248 (136 S. E. 173); Irving v. Home Acc. Ins. Co., 36 Ga. App. 551 (137 S. E. 105); Civil Code (1910), §§ 4414, 4415.

Judgment reversed.

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


author: Luke, J.

text:
    18091.
    BURCH v. ATLANTIC LIFE INSURANCE CO.
    1. The petition in this case—an action on promissory notes—set out a cause of action. Paragraph 5 thereof, as to the notice given for the purpose of recovering attorney’s fees, sufficiently specified the holder of the notes sued on. The demurrers were properly overruled.
    2. The amendment to the petition did not set up a new cause of action, and was properly allowed.
    3. The defendant in the court below introduced no evidence; the plaintiff made out its case; there was no issue of fact for the jury to decide, and the trial judge properly directed a verdict for the plaintiff.
    Bills and Notes, 8 C. J. p. 857, n. 85; p. 881, n. 89; p. 1060, n. 38.
    Continuances, 13 C. J. p. 141, n. 53; p. 142, n. 55, 56, 58; p. 163, n. 27.
    Corporations, 14a C. J. p. 855, n. 70; p. 857, n. 89.
    Pleading, 31 Cye. p. 407, n. 71; p. 414, n. 13, 14, 16; p. 415, n. 29.

      4. In view of the facts that the case had been several times continued at the instance of the defendant, and had been put upon terms for more than a year, that counsel for the defendant knew of his client’s physical condition and the likelihood of his inability to attend court, and, with this knowledge of his client’s condition and of the case being upon terms, failed to take the defendant’s interrogatories, and that there was no doctor’s certificate of the defendant’s inability to attend court, the trial judge did not abuse his discretion in refusing again- to continue the case at the request of the defendant’s counsel.
    5. The notes sued on were' properly admitted in evidence.
    Decided June 14, 1927.
    Reitearinci denied July 26, 1927.
    Complaint; from city court of Thomasville—Judge MacIntyre. February 4, 1927.
    Application for certiorari was denied by the Supreme Court.

      James B. Burch, IF. II. Ilammond, for plaintiff in error.

      George II. Harris, contra.
   Luke, J.

The Atlantic Life Insurance Company brought suit against J. R. Burch upon certain promissory notes. The defendant filed general'and special demurrers to the petition, which were overruled; to which ruling the defendant filed exceptions pendente lite. The plaintiff amended its petition; the defendant filed written objection, and to the overruling of this objection and the allowance of said amendment the defendant filed exceptions pendente lite. Upon. the trial of the case the plaintiff introduced evidence in support'of its allegations; the defendant introduced no evidence; and the court directed a verdict in favor of'the plaintiff for principal, interest, and attorney’s fees. The defendant filed a motion for a new trial, with amendments thereto, which was overruled, and the case was brought here for review. The bill of exceptions assigns error on the overruling of the demurrers, the allowance of the amendment, the direction of the verdict, and the overruling of the motion for a new trial. The special grounds of the motion for a new trial are upon the direction of the verdict, a refusal to continue the case, and the admission of certain evidence. The petition alleged, in substance, that the • defendant, a resident of said county, was indebted to the plaintiff in a certain sum, besides interest and attorney’s fees; that the indebtedness was evidenced by three promissory notes, copies of which were attached to and made a part of the petition; that the notes had been transferred and assigned to the plaintiff for value and before maturity; that copies of the assignments were attached to and made a part of the petition; that in case of default of any one of the notes, all of them, by the terms thereof, became due in the discretion of the holder; that such default had been made by the defendant, and all of said notes had been declared due; that the defendant refused to pay said notes; that notice of attorney’s fees had been given to the defendant, a copy of which was attached to and made a part of the petition; and the petitioner prayed for process \ and judgment. This petition was sufficient to withstand the general demurrer directed against it.

The special demurrer “demurs to paragraph 5, in that said paragraph does not allege that the notice specified the holder of said notes, nor does Exhibit E attached to said petition state the name of the holder of the notes.” Paragraph 5 alleged that the petitioner’s attorney gave notice of attorney’s fees, set out in substance the contents thereof, and attached, as an exhibit to and part of said paragraph, a copy of said notice, marked Exhibit E. This notice is addressed to the defendant, and begins: “As attorney at law for the Atlantic Life Insurance Company, of Bichmond, Virginia, I hereby notify you of my intention to file a suit against you for it,” and it is signed by “Geo. H. Harris, as attorney at law for Atlantic Life Insurance Company.” This notice, which was a part of the paragraph, clearly showed that the Atlantic Life Insurance Company, the plaintiff, was the holder of the notes, that the attorney of the company would file the suit “for it” and that he was giving the notice “as attorney at law for the Atlantic Life Insurance Company.” Eurthermore, the notice specifically stated that the notes were “given by you [the defendant] to Old Dominion Trust Company, and by said Old Dominion Trust Company transferred before due for value to said Atlantic Life Insurance Company,” the plaintiff. This left no doubt as to who was the holder of the notes, and the special demurrer was properly overruled. See Aycock v. Tillman, 14 Ga. App. 80 (80 S. E. 301); Phelps v. Belle Isle, 29 Ga. App. 571 (116 S. E. 217). The plaintiff in error cites the eases of Carey v. Wyatt, 17 Ga. App. 517 (87 S. E. 770), and Baskins v. Valdosta Bank, 5 Ga. App. 600 (63 S. E. 648). Neither is applicable. In one of them the notice failed to state the name of the holder of the note; and in the other the notice indicated that the suit would be brought by the original payee, when in fact it was brought by the transferee. The notice in the instant case is not subject to either of these criticisms.

The defendant’s objection to the plaintiff’s amendment to the petition was “on the ground that the same seeks to set up a new cause 'of action; it appearing from the allegations made in plaintiff’s original petition that Old Dominion Trust Company assigned and transferred said notes sued on to the Life Insurance Company of Virginia, and that said Life Insurance Company of Virginia in turn transferred and assigned said notes sued on to plaintiff; while it appears from the amendment offered by plaintiff that said notes sued, on were transferred and assigned by Old Dominion Trust Company directly to plaintiff.” .In the original petition and in the petition as amended the plaintiff is the same, the defendant is the- same, the nature of the suit is the same, and the notes sued on are the same. The amendment merely showed that the notes were transferred to the plaintiff by the original payee, rather than by the Life Insurance Company of Virginia. The title to the notes was in the plaintiff," regardless of which of these parties transferred it to the plaintiff. The original petition alleged that the notes were transferred to the plaintiff by the Life Insurance Company of Virginia, and the original petition also had attached to it copies of the notes and assignments on the back thereof, which showed that they were transferred to the plaintiff by the Old Dominion Trust Company. The amendment merely corrected this contradiction, but did not change the parties to the suit, the nature of the transaction, or the cause of action; and it was properly allowed. Civil Code (1910), § 5682.

Ground 1 of the amendment to the motion for a new trial complains of the direction of the verdict. The plaintiff in the court 'below introduced in evidence the three notes sued on, the transfer of the three notes to the plaintiff, and a copy of the notice of attorney’s fees. The assignments introduced in' evidence were written on the back of the notes upon which suit was brought,, and were as follows: “For value received we hereby sell, assign and transfer the within note and interest note thereto annexed, together with all our interest in and right under the deed securing the same, without recourse, to Atlantic Life Insurance Company. Old Dominion Trust Co.' H. E. Litchford, V.-Pres. (Corp. Seal.)” The attorney for the plaintiff company swore: “There appears an assignment on the back of the $500 note, and an assignment identical in wording on the back of the said $5000 principal note and $325 interest note. I will swear that that is the signature of H. E. Litchford signed to each of said assignments, and that H. E. Litchford was then and until recently vice-president of the Old Dominion Trust Company. . . I hold in my hand carbon duplicate of a notice of attorney’s fees directed to the defendant, James E. Burch, Thomasville, Ga., and signed by myself as attorney for the plaintiff company. I handed this notice to the defendant personally more than ten days prior to the filing of this suit. I talked with Mr. Burch about the notes, and told him that they had been declared due, before handing him the original attorney’s fees notice of which this is a true carbon duplicate; and Mr. Burch said that he owed' the notes, that it was a just debt and he intended to pay it, but had had hard luck and had a bad time and was then unable to pay anything on them.” The notice of attorney’s fees met the requirements of the statute in regard thereto. The defendant in the court below introduced no evidence. The plaintiff made out its case; there was no issue of fact for the jury to decide; and the court properly directed a verdict for the plaintiff. Civil Code (1910), § 5926; Stanford v. New England Mortgage Security Co., 110 Ga. 274 (2) (34 S. E. 600).

Special ground 2 of the motion for a new trial complains of the refusal of the court to continue the case. The attorney for the defendant in the court below stated that the defendant, his father, was an old man seventy-six years old; that he was sick in bed; that he could not conduct the case intelligently without him, and that he (the attorney) was unable to get in touch with Dr. J. B. Palmer, who had been attending the defendant. A note of the trial judge attached to this ground is as follows: “This case was brought to the September term, 1924. At the March term, 1925, the case was continued on account of sickness of the defendant. At the June term, 1925, the case was continued on account of illness of James B. Burch, the son of the defendant and the defendant’s attorney. At the time of the continuance at the June term, 1925, the court put the case as to the defendant on terms, and an order was so^ entered upon the minutes, the said order being as follows, to wit: Atlantic Life Ins. Co. v. James E. Burch. No. 5256. Suit on notes. September term, 1924. City court of Thomasville. The above-stated case being called in its order for trial, and plaintiff having announced ready, and counsel for the defendant asking for continuance on account of his illness, and it appearing that this case was continued at the last term on account of illness of defendant, plaintiff then having announced ready for trial, it is ordered by the court that this case be put upon terms as to the defendant, and that the same be set for trial and to be tried at the next term of this court, without privilege of continuance upon the part of defendant. Let this order be duly filed and entéred. In open court this 24th day of June, 1925. H. J. MacIntyre, Judge City Court of Thomasville. Geo. H. Harris, Atty. for Plaintiff.’ On the 25th day of September, 1925, a few days before said case stood for trial at September term, 1925, the defendant obtained a temporary injunction from the judge of the superior court of the Southern Circuit, which injunction prevented a trial at this term. On December 2, 1925, the judge of the superior Court dissolved' the temporary injunction. On January 1, 1926, the said judge of the superior court granted an order that ‘ supersedeas do issue upon the plaintiff giving bond to pay the defendant interest accruing upon the note sued on, from the date of the denial of the interlocutory injunction until the remittitur of the Supreme Court is made the judgment of this court, in the event the plaintiff loses in the litigation aforesaid,’ and ordered further that the order dated Dec. 2, 1925, denying the interlocutory injunction as stated therein, be superseded upon the approval of said bond by the clerk of the superior court. On June 21, 1926, the Supreme Court affirmed the decision of the judge of the superior court dissolving the temporary injunction. The plaintiff in error, J. R. Burch, moved for a rehearing, and the rehearing was denied, and the remittitur in said case was filed in the office of the clerk of the superior court on the 19th day of July, 1926, and the case was again placed on the trial calendar of the city court of Thomasville for trial at the September term, 1926, and again a motion was made for a continuance on account of sickness of the defendant, notwithstanding that the case had been put on terms as aforesaid. The city court of Thomasville convenes every three months. This case was filed in the city court for two years prior to the overruling of said motion for continuance, herein complained of. The plaintiff’s attorney announced ready every time said case was called for trial in the city court of Thomasville. There was no statement or testimony that Dr. Palmer had been summoned as a witness. This Feby. 4, 1927. li. J. MacIntyre, Judge City Court of Thomasville, Ga.”

It appears from this note of the trial judge that this case has been kept from trial for more than two years by some act of the defendant in the court below, and that the plaintiff was ready for trial every time the case was called. It also appears that the defendant knew that the case had been put upon terms 15 months previously, “without the privilege of continuance on the part of the defendant;” and yet, with knowledge of this fact and of the advanced age and feeble condition of his client, the attorney for the defendant preferred to take a chance on getting the case continued again rather than take his client’s interrogatories, which he could have done. The defendant’s counsel offered no testimony on the hearing of the motion for a continuance as to what assistance his client could render had he been present. Other than the defendant’s answer denying “each and every paragraph of the petition,” there is no contention that the defendant did not sign'the notes or that he had ever paid them. In view of the fact that the case had several times been continued at the instance of the defendant, and had been put upon terms for more than a year, that counsel for defendant knew of his client’s physical condition and the likelihood of Ms inability to attend court, that with this knowledge he did not take the defendant’s interrogatories, and that there was no doctor’s certificate of the defendant’s inability to attend court, the trial court did not abuse his discretion in re-’ fusing to continue the case. See Stanford v. New England Mortgage. Security Co., supra; Camp v. Britt, 121 Ga. 466 (49 S. E. 286); Bomar v. Equitable Mortgage Co., 121 Ga. 466 (49 S. E. 267); Seagraves v. Powell Co., 136 Ga. 877, 878, 879 (72 S. E. 349); Gable v. Gable, 130 Ga. 689 (1, 2) (61 S. E. 595); Porter v. Porter, 17 Ga. App. 456 (87 S. E. 707).

The 3d and 4th special grounds of the motion for a new' trial allege error upon the admission in evidence of the notes sued upon; the objection being that the execution of the assignment on the back of the notes had not been proved, and the transfer of title thereto from Old Dominion Trust Company to Atlantic Life Insurance Company had not been proved. The transfer on the back of the notes was in proper form, and was signed “Old Dominion Trust Co. H. E. Litchford, V.-Pres. (Corp. Seal.)” The seal itself is prima facie evidence that it was affixed hy proper authority, and the defendant introduced no evidence in rebuttal thereof. The attorney for the plaintiff testified: “That is the signature of H. E. Litchford signed to each of said assignments, and that H. E. Litchford was then and until recently vice-president of the Old Dominion Trust Co.” The court properly admitted this evidence. See Solomon’s Lodge v. Montmollin, 58 Ga. 547; Boone v. Jenkins, 147 Ga. 812 (95 S. E. 707); N. T. Life Ins. Co. v. Rhodes, 4 Ga. App. 25 (60 S. E. 828). No reason is shown for a reversal of the judgment of the trial court.

Judgment affirmed.

Broyles, G. J., and Bloodiuorih, J., concur.


author: Bell, ,T.

text:
    17752.
    United States Fidelity & Guaranty Co. et al. v. Newton.
    Contracts, 13 C. J. p. 270, n. 28.
    Evidence, 22 C. J. p. 1236, n. 32.
    Insurance, 32 C. J. p. 1348, n. 11.
    Workmen’s Compensation Acts, C. J. p. 115, n. 37; p. 117, n. 52 New; p. 124, n. 66 New.
    Names, 29 Cy'c. p. 270, n. 43.
   Bell, ,T.

1. An individual may transad business either in his true name or in a trade name, and this rule is applicable to an administrator as to contracts which he is authorized to make. Hence, a purported contract of industrial insurance, made between one person as insurance carrier and the estate of a named person as employer, may be shown, by the surrounding circumstances, to have been intended as an agreement between the insurance carrier and the administrator of such estate, affecting the administrator in-his representative capacity; and in such a case, the agreement will not bo held invalid for an insufficient designation of parties, but, if no other legal obstacle appears, will be enforced for the purposes for which it was made. Queen Ins. Co. v. Peters, 10 Ga. App. 289 (2) (73 S. E. 536); Farmers & Merchants Bank v. Farkas, 27 Ga. App. 153 (107 S. E. 610); Williamson v. Marchman, 35 Ga. App. 710 (134 S. E. 625); Cases cited in note to 42 L. R. A. (N. S.) 79. This case is unlike the case of Neal v. Harber, 35 Ga. App. 631 (134 S. E. 349), in which there was a transfer of real estate and nothing to show the use of a trade name.

2. The evidence in this case authorized the inference that the person for whose death compensation was sought was an employee of the administrator and not the employee of another as independent contractor.

3. Assuming that the administrator as such was not, without the sanction of the ordinary, authorized to employ labor for the purpose of repairing the building, in the work on which the employee received his fatal injury, or that the property, being realty, had descended to the heirs at law and for that reason was not subject to repair by the administrator, where the insurance carrier, with full knowledge of all the facts, entered into an agreement to compensate the employees of the administrator for injuries sustained by them in the particular employment, and received premiums for such insurance, it will not be heard' to question the validity of the contract between the administrator and the injured or deceased employee, or to deny the existence of the master and servant relation between them, upon either of the grounds stated. Compare Maryland Casualty Co. v. Wells, 35 Ca. App. 759 (134 S. E. 788), and eit.

Decided July 13, 1927.

Rehearing denied September 23, 1927.

Appeal; from Colquitt superior court—Judge W. E. Thomas. October 12, 1926.

Application for certiorari was made to the Supreme Court.

E. B. EveratP Jr., Bryan & Middlebroohs, for plaintiff in error.

Waldo BeLoache, Hoyt H. Whelchel, contra.

4. Assuming that an appeal by the insurance carrier to the superior court, in which is contained an allegation that the award is “ contrary to law,” is sufficient to raise in that court the question of whether the award is invalid as being against the insurance carrier alone, an award which, as here, is directed both to the employer and to the insurance carrier, as well as to the claimant, and orders the insurance carrier, “for-the” employer, to pay to the claimant certain sums of money specified, is not an award against the insurance carrier alone, but is an award against both the employer and the insurance carrier.

5. Moreover, in view of section 71 of the workmen’s compensation act (Ga. L. 1920, p. 167), providing that the agreement of the insurer “shall be construed to be a direct promise by the insurer . . to the person entitled to compensation, enforceable in his name,” an award against an insurer should not be set aside at the 'instance of that party upon the ground that it was not also against the employer. An omission in this regard, if error at all as against the insurer, could amount only to “an error of form and not of substance.” The direction by this court in Hartford Accident &c. Co. v. Hall, 36 Ga. App. 574 (137 S. E. 415), that the judgment be amended so as to include the employer as a party, appears to have been made solely in the interest of the claimant, and voluntarily, since the claimant was not excepting. The court might properly have affirmed the judgment in that case without giving the direction stated, but did otherwise under the authority to make any order consistent with the law and justice of the case. Finley v. So. Ry. Co., 5 Ga. App. 722 (64 S. E. 312).

Judgment affirmed.

Jenkins, P. J., and Stephens, J., coneu,r.


text:
    17770.
    McKerley v. Georgia School of Technology et al.

    Master and Servant, 39 C. J. p. 537, n. 12.
    Decided July 13, 1927.
    Rehearing denied September 9, 1927.
    Action for damages; from Fulton superior court—Judge Howard. October 14, 1926.
    Application for certiorari was denied by. the Supreme Court.

      Key, McClelland & McClelland, for plaintiff.

      Little, Powell, Smith & Goldstein, Kendrick L. Scott, for defendants.
   Stephens, J.

It appearing from the petition that the injuries which the plaintiff received as a result of the alleged negligent condition of steps which the plaintiff was using were caused solely by the negligence of the plaintiff’s fellow servants, without the knowledge or consent of the defendant, who was the master, in removing nails from the treads upon the steps just before the plaintiff stepped upon them, the petition set out no cause of action against the defendant, and was properly dismissed upon demurrer.

Judgment affirmed.

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


text:
    17805.
    Lumbermen’s Mutual Casualty Co. et al. v. Flindt.
    Workmen’s Compensation Acts, C. J. p. 122, n. 40.
    Decided July 13, 1927.
    Appeal; from Fulton superior court—Judge Howard. November 1, 1926.

      Underwood & Haas, H. Smyth Gambrell, for plaintiffs in error.

      J. F. Mayfield, contra. .
   Bell, J.

In this case, which arose under the workmen’s compensation law, the main and controlling facts, so far as they related to the cause and circumstances of the claimant’s injury, were the same as those in Maryland Casualty Co. v. Peek, 36 Ga. App. 557 (137 S. E. 121), and the decision in that case governs this case. The order of the Industrial Commission denying compensation was authorized, if not demanded, by the evidence, and the superior court erred in sustaining the appeal of the claimant.

Judgment reversed.

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


text:
    17810.
    Carter v. Martin et al.

    Descent and Distribution, 18 C. J. p. 902, n. 41; p. 903, n. 42, 45. Executors and Administrators, 24 C. J. p. 795, n. 91.
    Decided July 13, 1927.
    Eevival of judgment; from Laurens superior court—Judge Camp. November 27, 1926.

      E. L. Stephens, for plaintiff in error.

      G. E. Williams, Little, Powell, Smith & Goldstein, Eendrich Scott, contra.
   Bell, J.

Although it is the general rule that heirs at law can not maintain a suit upon a chose in action in favor of their intestate, and that such a suit can be brought only by an administrator (Brown v. Mutual Life Ins. Co., 146 Ga. 123, 90 S. E. 856; Hill v. Maffett, 3 Ga. App. 89, 59 S. E. 325; Wilson v. Brice, 23 Ga. App. 734, 99 S. E. 385; Armstrong v. Harper, 25 Ga. App. 71, 102 S. E. 463), there may exist special circumstances authorizing an exception to this rule in some instances. Denny v. Gardner, 149 Ga. 42 (99 S. E. 27). Thus, where, as in the present case, the plaintiff: in a judgment died intestate, and an administrator who was appointed to administer his estate was subsequently discharged as having fully administered the estate, and had so administered it, except that he had “failed to collect anything on the judgment aforesaid,” and where, prior to his discharge, the administrator had “turned over” to the heirs at law of such intestate an execution which had been issued upon such judgment, and where, after the execution was thus placed in the hands of the heirs at law and after the administrator had been discharged, the judgment became dormant, and where there was no other administration “on or for said estate,” a suit to revive the judgment, brought against the defendant therein, by all the heirs at law of the plaintiff, was not subject to demurrer upon the ground that it could be maintained only by an administrator or other legal representative of the plaintiff in the judgment. Under the special facts shown, the case appears to be controlled in principle by the decision of the Supreme Court in Moughon v. Masterson, 140 Ga. 699 (1, 5) (79 S. E. 561). A second administration was not necessary, and the suit could proceed in the name of the heirs at law.

Judgment affirmed.

Jenlcms, P. J., and Stephens, J., concur.


author: Jenkins, P. J.

text:
    17811.
    Harrell v. Swift & Company.
    Husband and Wife, 30 C. J. p. 889, n. 41 New.
    Partnership, 30 Cyc. p. 592, n. 22.
   Jenkins, P. J.

1. Where a joint note is executed by husband and wife for fertilizers which by the terms of the instrument are to be used on certain lands in a named county, which the proof shows belong to the wife, and upon certain other lands lying in another county, which the proof shows belong to the husband, but where the instrument in no wise indicates any proportion of distribution for the fertilizer, the wife, in the absence of a showing of an existing partnership between her and the husband, is bound only to the extent of so much of the consideration as she afterwards in fact received. Dobbins v. Blanchard, 94 Ga. 500 (21 S. E. 215). While it is true that she might receive her portion of the consideration herself or through her husband as her duly authorized agent, still where it in fact appears that the entire fertilizer was delivered to the husband, not as agent, but as one of the contracting parties, and was applied by him solely to his own use, and that he did not employ any of the fertilizers for the use and benefit of his wife, under the principle stated above she can not be held liable for the whole consideration of the note, or for any portion thereof thus received and appropriated by the husband.

Decided July 13, 1927.

Complaint; from city court of Bainbridge—Judge Spooner. November 29, 1926.

B. G. Harisjield, for plaintiif in error.

J. O. Hale, Tye, Peeples & Tye, contra.

2. Although the husband testified that he managed and controlled the land belonging to the wife, there is no sort of testimony going to indicate a commingling of interests or profits such as might indicate a partnership. Accordingly, the court erred in charging the la.w of partnership.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    17825.
    BUTLER v. LOVELACE-EUBANKS LUMBER COMPANY et al.

    Although that part of section 4169 of the Civil Code (1910), as to title by prescription, which relates to forged or fraudulent deeds was not applicable to the case on trial, the giving of that section in charge' to the jury could not have harmed the plaintiff and was not cause for a new trial.
    The court did not err in giving in charge sections 3820 and 3821 of the Civil Code as to landmarks.
    The verdict for the defendant was authorized by the evidence.
    Appeal and Error, 4 C. J. p. 918, n. 42; p. 1033, n. 37. Boundaries, 9 C. J. p. 292, n. 34.
    Decided July 13, 1927.
    Action for damages; from Wilkes superior court—Judge Perry-man. November 10, 1926.

      W. A. Slaton, for plaintiif. B. W. Portson, for defendant.
   Jenkins, P. J.

The ■ plaintiif and the defendant indisputably owned and possessed adjoining farms. The suit was for damages on account of alleged depredations upon the plaintiffs timber rights. The defendant, by its answer, set up alleged similar depre-. dations upon its timber rights. "Upon the trial of the case the sole issue for the jury was the location of the dividing line between the adjoining farms of the parties. Apparently, the land in dispute had not been in cultivation for more than twenty years, the contention of each of the parties being based, not upon the right of possession, but upon the correct ascertainment of the true line, and it is properly conceded by counsel for the plaintiff that the evidence did not demand a verdict for either party. The jury found in favor of the defendant, and the plaintiff excepts to the refusal of her motion for a new trial. Exception is taken to the action of the court in charging sections 3820 and 3821 of the Civil Code of -1910, on the ground that there was no evidence to authorize the reference to “natural landmarks,” and that there was no evidence to authorize the charge with reference to “ancient or genuine landmarks such as corner stations or marked trees,” it being the plaintiff’s contention that there was no identification by the witnesses of any ancient landmarks of more than thirty years standing, and that the use of such language in the charge of the court amounted to an expression of opinion that certain marks on trees testified about by certain of the witnesses were in fact landmarks. Exception was also taken to the action, of the court in giving in charge that portion of section 4169 of the Civil Code of 1910 which refers to forged or fraudulent -titles, on the .ground that this portion of the charge, not being authorized by the evidence, was misleading to the jury and harmful to the rights of the plaintiff.

1. There being no question or 1 dispute with reference to the title of each of the litigants to their respective farms lying adjacent to one another, and the sole question being the determination of the true dividing line, the instruction of the court giving in charge the portion of section 4169 of the Code of 1910 with reference .to forged or fraudulent deeds, while not applicable to the case and not adjusted to the evidence, being a correct statement of a general principle of law, applicable alike to both parties, could have had no harmful effect upon the rights of the plaintiff, and was not cause for a new trial. Dolvin v. American Harrow Co., 131 Ga. 300 (10), 310 (62 S. E. 198).

(a) There was evidence going to show the general reputation in the neighborhood with respect to the location of certain ancient landmarks of more than thirty years standing, and there was certain other evidence, admitted without objection, going to indicate the general reputation in the neighborhood with respect to the location of certain landmarks which might or might not have been in existence for a period of thirty years. The charge of the court limiting the jury to the consideration of evidence of the general reputation of only such ancient landmarks as had been in existence for thirty years was not contrary to, but favorable to, the rights of the plaintiff, inasmuch as it excluded from the consideration of the jury certain portions of the defendant’s evidence which had been admitted without objection.

(&) The reference in the charge to the provision of section 3820 of the Civil Code of 1910 concerning natural landmarks was not unauthorized, one of the main contentions of the defendant being that a large rock, placed by nature, constituted one of the dividing corner-marks, fixing the beginning point of the true but disputed line between the adjoining premises. Whether certain other landmarks contended for by the defendant, such as the naturally growing hedgerow along the ancient “turn-row” could properly be called natural landmarks, it is not necessary to determine.

2. The verdict being amply authorized by the evidence, and the only grounds of the motion for a new trial which were not expressly abandoned not authorizing this court to set aside the verdict, the judgment refusing a new trial must be affirmed.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    17837.
    Gragg Lumber Company v. Collins.
    Certiorari, 11 C. J. p. 161, n. 31; p. 191, n. 2 New.
    Logs and Logging, 38 C. J. p. 227, n. 24.
   Stephens, J.

1. The filing with the clerk of the superior court of the certiorari bond required under section 5185 of the Civil Code (1910) being a condition precedent only to. the issuance of the writ and not to the sanction of the petition for certiorari, the certiorari is valid as respects any requirement as to the giving and filing of the bond, where a valid legally required bond is filed with the clerk of the superior court prior to the issuance of the writ, notwithstanding the bond attached to the petition may be invalid. Smith v. McCranie, 14 Ga. App. 721 (82 S. E. 307).

Decided July 13, 1927.

Petition for certiorari; from Wilkinson superior court—Judge Park. November 23, 1926.

Eli B. Hubbard, for plaintiff in error. H. B. Wimberly, contra.

2. Where a second petition for certiorari is presented to the judge of the superior court for sanction within six months after the dismissal of the first petition, and where it appears in the second petition, by the certificate of the clerk of the superior court incorporated therein, that the legally required certiorari bond, with the approval thereon of the magistrate whose decision was sought to be reviewed, was duly filed with the clerk of the superior court prior to the issuance of the writ of certiorari upon the first petition, although the bond attached to the first petition was invalid, in that it was not approved by the trial magistrate, it appears in the second petition for certiorari that the first petition was, in so far . as the certiorari bond was concerned, a legal and valid petition.

3. Where a valid certiorari has been dismissed, it may be renewed within six months under the provisions of section 4381 of the Civil Code (1910). Citizens Banking Co. v. Paris, 119 Ga. 517 (46 S. E. 638).

4. A laborer’s lien for work done upon personal property, such as cutting timber, will not attach against the property where it does not belong to his employer, and will not attach against the property when the title is in a third person. Baughman Automobile Co. v. Emanuel, 137 Ga. 354 (73 S. E. 511, 38 L. R. A. (N. S.) 97); Lanier v. Bailey, 120 Ga. 878 (48 S. E. 324).

5. Applying these rulings, it appearing that the first certiorari was otherwise valid and that the second petition, which seeks to renew the first petition which was dismissed, contains valid grounds for certiorari, in that the evidence demanded a finding in favor of the plaintiff in certiorari, who 'had filed a claim of title to the property levied on, and is otherwise valid, and was brought within six months after dismiísal of the first petition, the judge of the superior court erred in refusing to sanction the second petition.

Judgment reversed.

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


text:
    17463.
    CITIZENS & SOUTHERN BANK v. TAGGART.
    “1. Under the Civil Code (1910), § 2364, a suit against a bank incorporated under the laws of this State can be brought against it, outside of the county of its principal place of business, only upon a cause of action arising from acts of its agents done in the county where such suit is brought, and in which the bank has an agency.
    Banks and Banking, 7 C. J. p. 754, n. 7 New.

      “2. Under the agreed statement of facts, the Atlanta branch of the Citizens and Southern Bank is not an agent or agency of that bank, within the meaning of the code provision above cited. This branch, under the facts, is conducting business, not as agent of the parent bank, but as the bank itself, and in its capacity as principal.”
    Decided July 14, 1927.
    Complaint; from Fulton superior court—Judge E. D. Thomas. May 11, 1926.

      Adams & Adams, Alston, Alston, Foster & Moise, for plaintiff in error.

      Little, Powell, Smith & Goldstein, Sam. L. Olive, Green S. Johnston, contra.
   Luke, J.

Taggart sued the Citizens & Southern Bank in the

superior court of Fulton county, alleging that the bank had damaged him by negligently failing to collect certain collateral. The bank filed a plea to the jurisdiction, in which it set up that the superior court of Fulton county could not legally take cognizance of the suit, because at the commencement of the suit and thereafter the defendant bank resided in Chatham county; that the transaction in question occurred in Chatham county; that the defendant had no agency in Fulton county, and that its Atlanta branch was not an agent of the defendant bank and had no connection with the controversy under consideration; and that the superior court of Chatham county and the city court of Savannah “have jurisdiction of this ease.” The issue was submitted to one of the judges of the superior court of Fulton county, without the intervention of a jury and upon an agreed statement of facts, and he rendered judgment against the plea. To this judgment the defendant excepted, bringing the case to this court for review. Questions certified by this court to the Supreme Court were answered as set out in the foregoing headuotes. For full opinion see 164 Ga. 351 (138 S. E. 898).

Under this ruling the judge of the superior court erred in not sustaining the plea to the jurisdiction.

Judgment reversed.

Broyles, O. J., and Bloodivorth, J., concur.


text:
    18108.
    Darby v. Thompson.
    Appeal and Error, 4 C. J. p. 864, n. 34.
    Decided July 14, 1927.
    Garnishment; from Toombs superior court—Judge Hardeman. March 30, 1927.

      W. M. Lewis, for plaintiff in error. Saffold & Sharpe, contra.
   Bloodworth, J.

The motion for a new trial contains no special grounds; this court can not say that there is no evidence to support the verdict; the verdict is approved by the judge who tried the case, and the judgment is Affirmed.

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


text:
    18109.
    Brown v. The State.
    Certiorari, 11 C. J. p. 158, n. 86 New.
    Decided July 14, 1927.
    Certiorari; from Fulton superior court—Judge Moore. March 9, 1927.

      Audley M. Lane, for plaintiff in error.

      Boy Dorsey, solicitor, John A. Boylcin, solicitor-general, J. W. LeCraw, contra.
   Broyles, C. J.

In view of the answer of the trial judge there is no merit in any of the assignments of error in the petition for certiorari, and the petition was properly overruled.

Judgment affirmed.

Luke and Bloodioorth, JJ., concur.


text:
    18110.
    Clinton v. The State.
    Criminal Law, 16 C. J. p. 1049, n. 82; p. 1050, n. 84; p. 1Ó53, n. 93.
    Homicide, 30 C. J. p. 318, n. 90; p. 337, n. SO; p. 355, n. 70.
   Luke, J.

1. Though conflicting, the evidence warranted the conviction of assault with intent to murder.

2. There being evidence that the defendant, a negro woman, while a passenger on a street-car, cursed and was guilty of such improper conduct as tended to cause a breach of the peace, and that the conductor was attempting to eject her from the car when she cut him, those provisions of section 927 of the Penal Code (1910) which were given in charge to the jury were applicable to the facts of the case, and this part of the charge was not subject to the exceptions taken.

3. The court’s charge, that in order to convict of assault with intent to murder “all the essentials of murder must exist save alone the killing,” and that “in the trial of this case you should view the transaction as if death had resulted,” was not reversible error “because it failed to instruct the jury as to the difference between the rule where death results from an assault and where death does not result,” the jury being further charged as follows: “Such assault must have been made with-a weapon likely to produce death in the manner in which it was used at the time. The assault must have been actuated by malice, either express or implied. It must have been made by a person making the assault with felonious intent at the time to kill the person alleged to have been assaulted. The burden is upon the State to establish beyond a reasonable doubt each and all of the essential elements to have existed at the time the defendant committed the offense charged, if she did commit it, before she could be convicted of the offense of assault with intent to murder, and that that offense, if it was committed, was not justified, or justifiable, under the law of self-defense.”

Decided July 14, 1927.

Assault with, intent to murder; from Fulton superior court— Judge E. D. Thomas. March 12, 1927.

H. A. Allen, for plaintiff in error.

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

4. Under the facts of this case it was not reversible error for the court to charge as to implied malice, in the words of section 62 of the Penal Code (1910).

5. Error is assigned because the court, after defining justifiable homicide in practically'the language of section 70 of the Penal Code (1910), instructed the jury that “if a person should kill another under the apprehension or fear that his life is in imminent peril, or that some bodily harm is about to be inflicted upon him amounting to a felony, then the clause relating to justifiable homicide as just read to you would be applicable;” the assignment being that “the last mentioned charge was not full and explicit enough for the jury to understand that if a killing was done under the circumstances enumerated, the slayer would be justifiable.” This assignment was not meritorious, in view of the following charge: “If the defendant was justified in what she did, . . or if you have a reasonable doubt as to whether or not she was justified, or if you believe that she did not commit the offense, . . or if you have a reasonable doubt about it, then she should be acquitted.”

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., coneur.


text:
    18112.
    WAYCASTER et al. v. SUGAR HILL LOCAL TAX SCHOOL DISTRICT et al.

    The assignments of error as to the exclusion of evidence are not in proper form for consideration; and the judgment validating the bonds must be affirmed.
    Appeal and Error, 3 O. J. p. 1370, n. 34.
    Decided July 14, 1927.
    Validation of schoolhouse bonds; from Gwinnett superior court —Judge Stark. March 15, 1927.

      John G. Houston, for plaintiffs in error.
    IT. L. Nix, Pemberton Cooley, solicitor-general, contra.
   Luke, J.

Intervenors in a proceeding to validate bonds for building and equipping a school assign error upon the exclusion of certain evidence offered by them. The rulings excluding this evidence were controlling, and the decision of the case hinges upon whether or not the assignments of error thereon sufficiently disclose the evidence in question. The first assignment alleges that “Plaintiffs in error offered evidence to the court to prove, that” forty-eight of those voting at said election (naming them) had not paid State, county, and poll-taxes for the year 1926; and also “offered evidence” that all said voters, except one, voted for bonds. The second assignment states that the “plaintiffs in error then offered evidence that twenty-oñe of those- voting at said election [naming them] registered since the last general election held in” Gwinnett county; . that their names were not on the voters’ list filed in the clerk’s office by the registrars of said county in 1926; and that “they also offered the evidence of the tax-collector of said county” that he had made no supplemental list containing said names for the registrars. The next assignment states that the “plaintiffs in error then offered evidence” that seven of those voting at said election (naming them) did not sign a voters’ book until January 10, 1927. The next assignment states that the “plaintiffs in error then tendered evidence” that the tax-collector did not close his voters’ book within five days after the call of the election, and did not furnish the registrars with any list of those voters registered since the last election who resided in said tax district. The last assignment states that “plaintiffs in error then tendered evidence” that seventeen women (naming them) who voted at said election were each over the age of twenty-two years when they registered, and had not paid any poll-tax for the year 1926, or any previous year.

1. “An assignment of error in excluding evidence must, to entitle it to consideration, on its face disclose,' either literally or in substance, what the evidence was.” Blackburn v. Woodward, 128 Ga. 226 (3) (57 S. E. 318); Stone v. Hebard Lumber Co., 145 Ga. 729 (89 S. E. 814); Jones v. Cole, 139 Ga. 596 (77 S. E. 810).

2. Measured by the foregoing rule, the assignments of error in this case are fatally defective and can not be considered by this court, and the judgment validating the bonds must be affirmed.

Judgment affirmed.

Broyles, G. J., and Bloodworlh, J., concur.


text:
    18113.
    COE v. THE STATE.
    Whether the inference of guilt which may arise from recent possession of stolen goods 'should be drawn where three months elapse between the theft and the finding of the goods in the defendant’s possession is a question for the jury.
    A conviction of burglary was authorized by the evidence.
    Burglary, 9 C. J. p. 1083, n. 75; p. 1085, n, 99.
    Decided July 14, 1927.
    Burglary; from Toombs superior court—Judge Hardeman. March 25, 1927.

      II. E. Elders, for plaintiff in error.
    . A. S. Bradley, solicitor-general, G. W. Lankford, contra.
   Bloodworti-i, J.

The defendant was convicted of burglary. The verdict was based upon the fact that certain articles taken from the burglarized building were found in the recent possession of the accused. The motion for a new trial alleges that the-two articles identified as having been taken from the burglarized building “were not found in the possession of the defendant until after three months from the time of said burglary, and that the same was not such recent possession as was required by the law.” The judge submitted this question to the jury, and they found against this contention. In Shaneyfelt v. State, 24 Ga. App. 555 (2) (101 S. E. 592), this court held: “Whether the inference of guilt which may arise from recent possession of stolen goods should be drawn where several weeks elapse between the theft and the finding of the , goods in the defendant’s possession is a question for the jury.” This settles this question adversely to the contention of the plaintiff in error. Under this ruling and the facts of the case, the jury were authorized to find the accused guilty.

Judgment affirmed.

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


text:
    18114.
    Middlebrooks v. The State.
    Criminal Law, 16 C. J. p. 1180, n. 74.
    Decided July 14, 1927.
    Assault with intent to murder; from Fulton superior court Judge Howard. February 19, 1927.

      E. G. Jackson, for plaintiff in error.

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

The accused was convicted of the offense of assault with intent to murder; his motion for a new trial was based upon the usual general grounds only; the evidence authorized the verdict, and the refusal to grant a new trial was not error.

Judgment affirmed.

Luhe and Bloodworlh, JJ., eoneur.


text:
    18115.
    Middlebrooks v. The State.
    Criminal Law, 16 C. J. p. 1180, n. 74.
    Decided July 14, 1927.
    Carrying concealed weapon; from Fulton superior court—Judge Howard. February 19, 1927.

      E. G. Jackson, for plaintiff in error.

      John A. Boykin, solicitor-general, J. IT. LeCraw, contra.
   Broyles, C. J.

The accused was convicted of the offense of carrying a concealed pistol; his motion for a new trial contained the usual general grounds only; the verdict was authorized by the evidence, and the refusal to grant a new trial was not error.

Judgment affirmed.

Luhe amd Blood-worth, JJ., concur.


text:
    18116.
    Parker v. The State.
    Assault and Battery, 5 C. J. p. 801, n. 27.
    Criminal Law, 16 C. J. p. 1050, n. 14; p. 105.7, n. 25.
    Decided July 14, 1927.
    Assault and battery; from city court of Blackshear—Judge Bowen. April 6, 1927.

      8. F. Memory, L. F. Brewer, for plaintiff in error.
   Luke, J.

It appearing, from tlie evidence for the defense, that Berta May Evans, the fifteen-year-old girl upon whom the defendant is alleged to have committed an assault and battery, had, without justification, slapped the seven-year-old child of the défendant twice, “and was about to slap her the third time, when Mabelle [the defendant] came up there and shoved Berta May oil one time,” and this being the main defense relied on by defendant, the court erred in failing to charge, without request, the principle that parents may protect their children. Penal Code (1910), § 74; Cole v. State, 2 Ga. App. 735 (59 S. E. 24); Warnack v. State, 3 Ga. App. 596 (60 S. E. 288); Reed v. State, 15 Ga. App. 435 (83 S. E. 674).

Judgment reversed.

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


text:
    18117.
    TALLENT v. THE STATE.
    A conviction of larceny from the house was authorized by the evidence; and under the allegation and the proof as to the value of the stolen property, the verdict fixing a felony punishment was authorized.
    Larceny, 36 C. J. p. 909, n. 98.
    Decided July 14, 1927.
    Larceny from house; from Pulton superior court—Judge E. D. Thomas. March 12, 1927.

      T. G. Battle, for plaintiff in error.

      John A. Boylcin, solicitor-general, J. W. LeCraw, John II. Hudson, contra.
   Bloodworth, J.

The plaintiff in error was indicted for larceny from the house of goods of the alleged value of $70. The proof showed that named articles of the value of $71 and other articles were stolen from the house. The jury returned a verdict of guilty and fixed “his minimum sentence at one year and the maximum sentence at three years.” The evidence is sufficient to support the conviction of a felony. Section 176 of the Penal Code of 1910 provides that punishment for larceny from the house, where the article stolen is “under the value of fifty dollars,” shall be “as for a misdemeanor; if the value of the money or thing thus stolen be fifty dollars or more, he shall be punished by imprisonment and labor in the penitentiary for not less than one nor longer than ten years/-’

Judgment affirmed.

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