text:
    18670.
    MOORE v. THE STATE.
    1. (a) Grounds of a motion for a new trial that are not unqualifiedly approved by the trial judge present no question for the consideration of this court..
    (6) A ground of a motion for a new trial that is not complete and understandable within itself, and requires reference to other portions of the record in order to determine what was the alleged error, will not be considered.
    2. The failure of the court to charge the jury that “a confession, in order to be admissible in evidence, must have been freely and voluntarily made” furnishes no cause for a new trial, where there was no written request for such a charge, and where there was no charge upon the law of confessions.
    Criminal Law, 16 O. J. p. 1002, n. 12; p. 1180, n. 74; 17 O. J. p. 88, n. 46, 56 New.

      3. The evidence authorized the verdict, and the court did not err in overruling the motion for a new trial.
    Decided March 7, 1928.
    Assault with intent to rape; from Wilkes superior court—Judge Perryman. November 30, 1927.

      Hugh B. Combs, for plaintiff in error.

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

The defendant was convicted of assault with intent to rape, and assigns error on the overruling of his motion for a new trial. The evidence of the woman assaulted makes a clear case. While it is not essential in a ease of assault with intent to rape that the testimony of the injured female be corroborated (Fields v. State, 2 Ga. App. 41, 58 S. E. 327), still in this ease the woman was corroborated by the sheriff of the county, who testified that when he carried the defendant before her she readily identified him, and that the defendant admitted what the woman said, and admitted that he caught hold of her and choked her. There is nothing in the record to indicate a “frame-up” by the woman. She was between 55 and 60 years old, had a husband, had been living with him 38 years, and had several children. She was not caught in any improper conduct or compromising position with the defendant, and no reason is shown for her making the charge had it not been true. The defendant was 22 or 23 years old. In his statement he admitted that he went to the woman’s house on the occasion in question, though the sheriff testified that when he first caught the defendant he denied having been to her house at all. The jury believed the testimony of the woman and that of the sheriff.

The 1st, 3d and 4th special grounds of the motion for a new trial are not unqualifiedly approved by the trial judge, and therefore present no question for the consideration of this court. Haygood, v. Clark Co., 27 Ga. App. 101 (107 S. E. 379); Gibson v. State, 27 Ga. App. 175 (107 S. E. 599).

The 2d special ground of the motion is not complete and understandable within itself, and requires reference to other portions of the record in order to determine what was the alleged error; and therefore will not be considered. Hayes v. State, 36 Ga. App. 668 (1g) (137 S. E. 860).

The 5th special ground of the motion alleges that “the court erred in failing to charge the jury that a confession, in order to be admissible in evidence, must have been freely and voluntarily made.” There was no charge upon the law of confessions and no written request for a charge on this subject, and. “even if the evidence authorized a charge on the law of-confessions, the failure to instruct the jury on that subject, in the absence of an appropriate written request so to do, was no cause for a new trial.” Pierce v. State, 132 Ga. 27 (2) (63 S. E. 792). It is not amiss to state that the sheriff testified, relative to the statements made by the defendant, that “the statements that he made were freely and voluntarily made. We did not threaten or intimidate him, and did not offer him any inducement or offer of reward; what he said was voluntary.”

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

Judgment affirmed.

Broyles, G. J., concurs. Bloodworth, J., absent on account of illness.


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
    18682.
    HAWKINS v. THE STATE.
    1. The evidence authorized the court’s instruction to the jury on the issue of the defendant’s aiding and abetting the possession of intoxicating liquor.
    2. The evidence authorized the conviction.
    Criminal Law, 16 C. J. p. 972, n. 75; 17 C. J. p. 271, n. 41.
    Decided March 7, 1928.
    Possessing intoxicating liquor; from Whitfield superior court— Judge Pittman. November 17, 1927.

      Stafford B. Brooke, for plaintiff in error.

      John G. Mitchell, solicitor-general, contra.
   Luke, J.

The defendant was convicted of possessing intoxicating liquor, and assigns error on the overruling of his motion for a new trial. The only special ground of the motion alleges that the court erred in charging the jury as follows: “If some other person or persons possessed intoxicating liquors in this county as charged in the bill, and this defendant was present, aiding and abetting, at the time, such other person or persons in their criminal act and participating in their criminal intent, he would be guilty and you ought to so find. If neither of these statements of facts are true, he would not be guilty and you ought to acquit him.” The evidence authorized this charge. The defendant did not deny that liquor was found in his house, but stated that he knew nothing of its being there, and that two other men had recently slept in that room where it was found. There was also evidence that the defendant had “the reputation of allowing liquor to be stored around his place,” and a witness swore that he “saw him throw some whisky out as the officers were coming last Saturday.” All who assist in the commission of misdemeanors are equally guilty as principals.

The verdict was authorized by the evidence and was approved by1 the trial judge, and, no reversible error of law being shown, the judgment overruling the motion for a new trial is

Affirmed.

Broyles; G. J., concurs. Bloodworih, J., absent on account of illness.


author: Broyles, C. J.

text:
    18683.
    Morris v. The State.
    Criminal Law, 16 C. J. p. 1180, n. 74.
    Decided March 7, 1928.
    Assault with intent to murder; from Haralson superior court— Judge Edwards. November 30, 1927.

      M. J. Head, Waller Matthews, for plaintiff in error.

      S. IF. Ragsdale, soliciior-gen&ral, contra.
   Broyles, C. J.

The verdict was amply authorized by the evidence and none of the grounds of the amendment to the motion for a new trial show cause for a reversal of the judgment below.

Judgment affirmed.

Luke, J., concurs. Bloodworih, J., absent on accou/nt of illness.


text:
    18684.
    Rosevelt v. The State.
    Criminal Law, 16 C. J. p. 1180, n. 74.
    Decided March 7, 1928.
   Broyles, C. J.

The verdict was authorized by the evidence, and the single ground of the amendment to the motion for a new trial shows no cause for another hearing of the case.

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.

Possessing intoxicating liquor; from Dougherty superior court —Judge Custer. December 1, 1927.

M. B. Peacock, Bennet & Peacock, for plaintiff in error.

B. G. Gardner, solicitor-general, contra.


author: Per Curiam.

text:
    18316.
    ATLANTIC MUTUAL FIRE INSURANCE CO. v. LANEY.
    Decided March 7, 1928.
    Rehearing denied April 10, 1918.

      Milner & Farlcas, B. L. Maynard, for plaintiff in error.

      8. P. New, Zach. Childers, contra.
   Per Curiam.

T. M. Laney sued Atlantic Mutual Fire Insurance Company on a fire-insurance policy. The defendant admitted issuing the policy to the plaintiff, but contended, in substance, that it was void because there was other insurance outstanding at the time of the issuance of the policy sued on; that the plaintiff and the agent of the defendant agreed that this outstanding insurance should be cancelled, but that said insurance was still of force at the time of the damage to the property covered by the policy sued on; also because the plaintiff had only an equity of redemption in the property. The defendant pleaded that these facts voided the policy sued on, under the provisions ttiereof. A verdict was rendered in favor of the plaintiff, covering damage by fire to the property insured, and damages for bad faith and attorney’s fees. The defendant made a motion for a new trial, which was overruled, and it excepts to that judgment.

There is ample evidence to show that the agent of the defendant company who wrote the policy had knowledge of the outstanding insurance and of the lien on the property at the time she wrote the policy sued on, and that she delivered the policy to the plaintiff with full knowledge of these facts, and accepted the premium from the plaintiff. “A fire insurance company which, through its agent, has either actual or constructive notice of the existence of outstanding insurance upon property when it issues a policy upon the same property, is estopped from insisting upon a clause in the policy whereby it is to be void if there be outstanding insurance.” Insurance Company of North America v. DeLoach, 3 Ga. App. 807 (61 S. E. 406). “As to all matters affecting conditions. precedent to a contract of insurance, the knowledge of the agent of the insurance company is imputed to the company, and the company is thereby charged with notice of any facts, affecting the risk about to be assumed, which may have come to or rest in the knowledge of its agent, and which good faith in the discharge of his duty as agent would require him to disclose to his principal.” Rome Insurance Co. v. Thomas, 11 Ga. App. 539 (3) (75 S. E. 894). “Where a policy of fire insurance contained a stipulation that it should be void if the subject of insurance be a building on ground not owned by the insured in fee simple, but, at the time the application for insurance was made, the company, through its agent, knew that the applicant did not own the land on which the building sought to be insured was situated, the company, in defending an action on the policy, will be estopped from setting up the noncompliance of the insured with this condition of the policy.” Springfield Fire &c. Ins. Co. v. Price, 132 Ga. 687 (2) (64 S. E. 1074). See also 2d headnote in the same case.

Even if the verbal contract to cancel the outstanding insurance, as alleged by the defendant to have been made, could supersede the written contract, the question whether the verbal contract was actually made was one of fact on which the evidence was in direct conflict, and therefore was for decision by the jury. The plaintiff swore that he made no agreement to cancel the outstanding insurance, and evidently the jury believed him, as they had the right to do.

The defendant company denied liability altogether and refused to pay the plaintiff; and under the evidence the recovery of damages for bad faith and for attorney’s fees was authorized. TJnder the circumstances shown, “such refusal upon the part of the insurance company to adjust or pay for any loss or damage claimed, after having received such notice and demand for payment, constitutes evidence of bad faith in a suit based upon section 2549 of the Civil Code of 1910.” Central Manufacturers Mutual Ins. Co. v. Graham, 24 Ga. App. 199 (1) (99 S. E. 434). Nor does the failure of the plaintiff to recover the full amount sued for in this case preclude him from recovering damages and attorney’s fees. Idem, paragraph 4.

There was no harmful error in admitting the testimony as complained of in the 1st, 2d, 3d and 4th special grounds of the motion for a new trial; nor in charging the jury as set out in grounds 5, 6, 7, 8, 9, 10, 11, and 12 of the motion. The 13th, 14th, and 15th grounds of the motion are but amplifications of the general grounds. The evidence amply supported the verdict. There was not even a hint that the fire-was incendiary, or that there was anything that would reflect upon the character of the plaintiff. There was evidence that the defendant company solicited the insurance which is the subject of the litigation. The policy was for $2000 on the house and $500 on the furniture. The recovery for damage to the house and furniture was $1658, and the defendant company’s own witness testified that the fire damaged the house $2000.

Judgment affirmed.

Broyles, C. J., and Luke, J., concur. Blood-worth, J., absent on account of illness.


author: Per Cubiam.

text:
    18344, 18345.
    Lipscomb v. Atkinson & Jolly (two cases).
    Decided March 7, 1928.
   Per Cubiam.

In eacli of these eases the verdict was authorized by the evidence, and none of the grounds of the motion for a new trial 'show cause ■ for a reversal of the judgment.

Judgments affirmed.

Broyles, O. J., and Tjulce, J., eoneur. Bloodworth, J., absent on account of illness.

Porter & Mebane, for plaintiffs.

Maddox, Matthews & Owens, for defendants.


text:
    18580.
    CANN, administrator, et al. v. MACON ACADEMY MUSIC COMPANY.
    Decided March 7, 1928.

      Harris, Harris & Popper, Anderson, Gann & Gann, Dorsey, Howell & Heyman, Troutman & Troutman, for plaintiffs in error.

      Slaton & Tioplcins, contra.
   Luke, J.

Macon Academy Music Company brought its action in two counts against C. B. Howard, as executor of the estate of G. T. Howard, and Brown 'Wimberly; but, by agreement of counsel, which was made an order of court, Ferris Cann, administrator with the will annexed, was substituted as a party defendant in lieu of C. B. Howard, who had resigned his executorship.

The first count of the petition seeks damages for breach of a certain lease contract, and the second seeks the recovery of unpaid rent. After the answer had been amended several times to meet demurrers, the court struck it and directed a verdict for the plaintiff. Upon proper exceptions the case is ¿rere for consideration.

Omitting the formal allegations, the first count of the petition is substantially as follows: 3.' Defendants have injured and damaged the plaintiff in the sum of $19,650 by the breach of a certain contract. ‘ 4. On July 18, 1918, G. T. Howard and Brown Wimberly leased from petitioner certain property in Macon, Ga., for a term of five years, to wit, from September 1, 1920, to August 31, 1925, at an agreed annual rental of $10,400, payable in monthly installments of $866.66, as appears from copy lease attached. 5. Defendants paid said rent according to contract through February, 1922, but nothing after that time. 6. Being permitted so to do under the terms of said lease contract, and to minimize its damages as required by law, the petitioner rented said premises to another tenant for a term of two years, to wit, up to and including February 29, 1924, at an annual rental of $5000, payable in monthly installments of $416.66 each. 7. Thereafter, for the purpose of minimizing its damages, the petitioner rented said premises to another from March 1, 1924, at an annual rental of $4500 for the first two years, payable in monthly installments of $375. 8. The failure and refusal of defendants to pay rent after February, 1922, was a breach of said lease contract. 9. “The amounts for which the premises were thereafter rented under the two contracts above described, for the purpose of minimizing plaintiff's damages, and for the account of the original tenants, were the best rent which petitioner was able to obtain for the premises, after diligent effort to rent same to the best advantage.'' 11. Defendants have refused to pay said amount, or any part thereof, on demand.

Except that count 2 is for the recovery of unpaid'rent instead of for breach of contract, it is the same as count 1. The lease contract referred to in paragraph 4 of each count of the petition contains the following provisions: “Lessor, at its option, upon a breach of any of the terms and conditions of this contract, may sublet the premises leased hereby, or any part thereof, at the best price that it can obtain by reasonable effort under private negotiations, and charge the balance, if any, between said price of subletting and the contract price, to the lessees and hold the lessees therefor. Said subletting by the lessor will not in any manner or in any sense be a breach of the contract on the part of the lessor, but will be an act in behalf of the lessees, merely as agent for said lessees in order to minimize the loss, if any. All rights of the lessor herein contained are both optional and cumulative, and not restrictive of any other rights under the law.” “This contract shall be considered as a lease and not as an estate for years. But this lease may be assigned or the premises sublet by the lessees to parties acceptable to the lessor only when permitted in writing by said lessor.” The contract further provides, that if lessees fail to comply with any of its terms, and continue so to do for ten days after notice of such failure is given them by the lessor, the lease, at the option of the lessor, shall terminate; and that notice by mail addressed to lessees care of Grand Opera House, Macon, Ga., or to their last-known residence, shall suffice; “provided further that it shall not be necessary to give any written notice whatever to lessees or assigns of any default as to payment of rent.” The contract contains also this clause: “It is hereby agreed that notwithstanding any assignment which may be permitted of this lease, that nevertheless the parties of the second part continue to remain bound for all the obligations of this contract.”

Answering the petition, the defendants (2) deny paragraph 3 of the petition, i. e., injury by breach of contract; (3) admit paragraph 4, i. e., the lease as alleged; (4) deny paragraph 5, and admit rent was paid under contract through February, 1922, but say the same was not paid directly by the defendants after October 1, 1920, but was paid by Capital Theatre Company directly to the plaintiff, which accepted Capital Theatre Company as its tenant in the place and stead of defendants, “and Capital Theatre Company assumed and agreed to carry out the rent of Grand Theatre to the expiration of the lease;” (5) answering paragraph 6 they deny that the plaintiff rerented the premises to minimize damages as alleged, but say that Capital Theatre Company assumed the defendants’ lease, and the plaintiff accepted Capital Theatre Company as its tenant, and afterwards reduced the rent without any agreement with defendants; (6) answering paragraph 7, they deny renting of premises by the plaintiff to another tenant as alleged, but say Capital Theatre Company assumed the defendants’ lease, and the plaintiff accepted that company as its tenant, and afterwards reduced the rent to Capital Theatre Company, without any agreement with the defendants; (7) answering paragraph 8, they deny that defendants refused to pay rent according to lease after February, 1922, and deny any breach of said contract, but say defendants entered into a contract with Capital Theatre Company whereby Capital Theatre Company rented the Grand Opera House, and agreed and assumed to carry out all the obligations of said contract with plaintiff, and, with consent of plaintiff, went into possession of the premises, and plaintiff accepted Capital Theatre Company as its tenant in the stead of the defendants; (8) they deny the amounts realized by the plaintiff from rerenting were to minimize damages, or for the accornil oE the defendants, “deny that this was the best rent which petitioner was able to obtain from the premises after diligent effort to rent same to the best advantage,” aver that the defendants had already subrented said premises to Capital Theatre Company for the full term of the original lease, and that the plaintiff had accepted Capital Theatre Company as its tenant and by its conduct waived the provision of the original lease requiring written permission for lessees to sublet the premises, and, afterwards, without the defendants’ permission, and for its own purpose, accepted a reduced rental from Capital Theatre Company; (9) they deny breach of contract and all indebtedness; (10) they admit refusal to pay.

Further answering, the defendants pleaded substantially as follows: (11) Defendants entered into said contract of lease with the plaintiff and fully performed their obligations thereunder. On September 14, 1920, Capital Theatre Company rented the premises from the defendants for the same rental, the same time, and upon the same terms as were agreed upon by the plaintiff and the defendants in said original lease contract. Capital Theatre Company went into possession of the premises with the full knowledge and consent of plaintiff. The first month Capital Theatre Company paid the rent to defendants, and they turned it over to plaintiff, but after-wards Capital Theatre Company paid the rent directly to plaintiff, which recognized said company as its tenant. No objection to renting of premises to Capital Theatre Company by defendants was ever made by plaintiff, and it made no further demand upon defendants to comply with the original contract. After plaintiff accepted Capital Theatre Company as its tenant in the place of defendants, all negotiations regarding the premises were carried on by it directly with Capital Theatre Company. When the latter failed to pay rent in 1922, no notice of default was given defendants, nor was airy demand made upon them for rent. Plaintiff entered into a complete settlement with Capital Theatre Company for all back rentals, and undertook to release it from its obligations to defendants under its lease with them, and executed a new lease on November 9, 1922, which provided that reduced rental should be effective as of March 1, 1922. This new lease was performed by Capital Theatre Company, and, at its expiration, renewed. (12) When plaintiff entered into said new lease it knew Capital Theatre Company had agreed to pay plaintiff the full amount due it under the original lease contract, and to carry out all the terms thereof. Nevertheless, plaintiff did not call upon defendants for rent, did not notify them that rent had not been paid, contracted directly with Capital Theatre Company for a lower rental, and accepted said lower rental. Wherefore plaintiff is estopped by its conduct from saying that it could release Capital Theatre Company from paying the full amount of rent it assumed to pay for defendants, and at the same time asserting that defendants should pay the difference between the rent originally contracted to be paid and the amount paid by Capital Theatre Company.

On August 20, 1925, the plaintiff demurred generally and specially to the plea and answer, and an order was taken requiring the defendants to show cause on September 12, 1925, why the “demur- . rers should not be sustained and the motion to strike granted.” On November 12, 1925, the defendants amended the plea and answer, and the amendment was allowed, “subject to objection and demurrer.” On June 6, 1926, the plaintiff renewed its demurrers to the plea and answer as amended. On June 2, 1926, the defendants filed an amendment to their plea and answer, “subject to objection and demurrer.” On June 13, 1927, the demurrer was renewed to the plea and answer as amended. On July 29, 1927, the court sustained the demurrer and struck the plea and answer, and defendants excepted pendente lite. On August 4, 1927, and during the same term of court, and over objection of plaintiff the court modified its order of July 29, 1927, by allowing defendants ten days from August 4, 1927, to amend their plea and answer. On August 8, 1927, defendants filed an amendment, “subject to objection and demurrer.” On September 3, 1927, plaintiff renewed its demurrers, and filed additional demurrers to said plea and answer as finally amended. On the same day the court “ordered and adjudged that-the answer be stricken as constituting an insufficient defense in the cause,” and the defendants excepted pendente lite.

As a part of the amendment of June 2, 1926, to the plea and answer, a copy of the lease of September 14, 1920, from the defendants to Capital Theatre Company was set out; also a copy of a letter from Capital Theatre Company to plaintiffs in error, dated December 1, 1921, and reading as follows: “It is understood and agreed that the Capital Theatre Company will assume and carry out the rent of the Grand Theatre to the expiration of the present lease which is now drawn and existing between Troup Howard and' Brown Wimberly and the Grand Theatre owners.” It was not until August 8, 1927, that a copy of the lease of November 9, 1922, made by Macon Academy .Music Company to Capital Theatre Company was set out in the answer, or that the substance of the subsequent lease between the same parties was given in the answer.

At this stage of the case we deem it proper to advert to the following contention of the defendant in error: The order of July 29, 1927, striking the answer, “as not containing a sufficient defense to the cause,” controlled thé case. After that order was amended to give additional time for amending the answer, an amendment was made which did not materially change the original defense, and therefore neither cured the defects of the said defense nor opened the answer to further demurrer. In this connection it is pointed out that the court stated in the order of July 29, 1927, that there was read in the presence of the court by counsel for the parties, and as part of the pleadings in the case, the sublease contract of November 9, 1922, from Macon Academy Music Company to Capital Theatre Company, referred to in the statement of indebtedness attached to the petition and also in the answer. However, up to this time the contents of the sublease had not appeared in the pleading.

In support of the contention that the said sublease was a matter for the court’s consideration in reaching the conclusion evidenced by the order of July 29, 1927, striking the answer, the ease of Chicago Building &c. Co. v. Talbotton Creamery &c. Co., 106 Ga. 84 (31 S. E. 809), is relied on. The gist of that decision is stated in headnote 1 as follows: “If upon the hearing of a demurrer to a petition the plaintiff make profert of a written contract which is the foundation of the suit, and produce and read the same, it thereby becomes a part of the petition and may be considered on the demurrer, notwithstanding it is not set forth in the petition or exhibited thereto. The better practice, however, is to set forth the' instrument in the petition or attach it thereto as an exhibit.” The key to the foregoing decision appears to be that the writtén contract in question was the “foundation of the suit.” The strictness with which the courts of this State adhere to the rule that the pleadings alone are to be considered on demurrer is evidenced by numerous decisions, including the following: Candler v. Kirkland, 112 Ga. 459 (37 S. E. 715); Mitchell v. So. Ry. Co., 118 Ga. 845 (45 S. E. 703); Hicks v. Beacham, 131 Ga. 93 (62 S. E. 45); Mann v. Showalter, 145 Ga. 268 (4) (88 S. E. 968). The last case cited (p. 275) limits the case cited in 106 Ga. in the following language: “The ruling in Chicago Bldg. &c. Co. v. Talbotton Creamery &c. Co., 106 Ga. 84 (31 S. E. 809), decided by four Justices, where upon the hearing of a demurrer to a petition, profert was made of a written contract which was the foundation of the suit, and it was produced and read, will not be so extended as to make a part of the record every paper in another case which is mentioned or partly described, so that it can be considered on demurrer to the petition, or brought to this court by specification as a part of the record.”

In the light of the foregoing, we do not think that the subcontract of November 9, 1922, could properly have been considered by the court in making its order of July 29, 1927. We are also of the opinion that the amendment filed to the answer on July 8, 1927, to which was attached a complete copy of the sublease of November 9, 1922, and which contained the substance of the subsequent sublease of March 1, 1924, was material and reopened to demurrer the plea and answer. Wherefore the correctness of the order of September 3, 1927, striking the answer as finally amended, “as constituting an insufficient defense,” is properly before this court for consideration.

To summarize: the following writings are for our consideration: (1) Original lease from Macon Academy Music Company to G. T. Howard and Brown Wimberly. (2) Lease from Howard and Wimberly to Capital Theatre Company. (3) Letter of December 1, 1921. (4) Subcontract of November 9, 1922, Macon Academy Music Company to Capital Theatre Company. (5) Subcontract dated March 1, 1924, from Macon Academy Music Company to Capital Theatre Company.

The original lease has been referred to in paragraph 4 of the petition, and certain parts of it have already been quoted. ' The lease from Howard and Wimberly to Capital Theatre Company, dated September 14, 1920, and made without the written consent of owners as provided in the original lease, ran for the same time, was for the same sum, and was payable as the original lease. It, however, provided that Howard and Wimberly should be paid at the end of the year a part of the net profits derived from the operation of G-rand Theatre. The said lease contains the following provisions: “It is hereby understood and agreed that this lease is made and accepted subject to all the terms, covenants, and stipulations and agreements contained in the aforesaid lease from the Macon Academy Music Company to G-, T. Howard and Brown Wimberly . . . ; and the lessee does hereby assume and agree to perform all of the covenants and obligations imposed upon the lessees in said lease, with the exception of the payment of the rent to the Macon Academy Music Company.” (Italics ours.) “The lessors herein agree to well and truly pay the rent to the Macon Academy Music Company specified in said lease to them as aforesaid, at the times and in the amounts and manner specified, and that they will commit no act detrimental to the lessee’s enjoyment of said premises, and which might cause a forfeiture of such superior lease on the premises aforesaid; and will promptly forward to the lessee herein all notices and writings affecting said tenancy received by them from the superior lessors aforesaid.”

The lease of November 9, 1922, from Macon Academy Music Company to Capital Theatre Company, beginning March 1; 1922, and ending at midnight on February 29, 1924, and stipulating for an annual rental of only $5000, contained the following provision: “It is understood and agreed between-the lessor and the lessee that the premises herein leased are being rented to said lessee for the account of G-. T. Howard and Brown Wimberly, lessees, and that the landlord can look to said Howard and Wimberly for any deficiency between the rental under this contract and the rent under the contract now existing between the landlord and said Howard and Wimberly; it being specifically agreed that the landlord does not by this contract waive any right at law and equity against said Howard and Wimberly.” The second contract between Macon Academy Music Company and Capital Theatre Company was the same as the first, except that it was for an annual rental of $4500 and commenced March 1, 1924, and ended February 28, 1929.

The original answer has already been set out somewhat fully, because it contains the germ of the defense. We shall now state very briefly the gist of the numerous amendments (the original lessor and the original lessees being designated for convenience as they were in the pleadings in the lower court, to wit, as plaintiff and defendants, respectively) : Under the lease of September 14, 1920, from tlio defendants to Capita] Theatre Company, the latter company wont into possession of the premises without objection on the part of the plaintiff, paid rents directly to the plaintiff after the first month, and was receipted for them by the plaintiff. The letter of December 1, 1921 (hereinbefore quoted), confirmed said lease. Plaintiff entered into subcontract of November 9, 1922, with Capital Theatre Company with full knowledge that the latter was the tenant of the defendants and had agreed to pay the full rent due by the defendants to plaintiff. Plaintiff knew that Capital Theatre Company had paid no rent to any one since February 1, 1922. Neither of the defendants had any notice of the making of said lease. Neither of the defendants knew of said lease, or of its terms, until long after it was made; nor did either of them know of its terms until after suit was filed. At the time the plaintiff executed its first lease to Capital Theatre Company it had the legal right to make it pay all rents; and in making the sublease of November 9, 1922, it compromised all claims for back rents, except as provided in said lease. Under said subcontract $5000 annually was paid, instead' of the $10,400 contracted to be paid by defendants under the original contract. By reason of its having received rents directly from Capital Theatre Company and of its having receipted the company directly for the same from October 1, 1920, to March 1, 1922, plaintiff is estopped from asserting that defendants owe it the difference between the amount due under the original contract and the amounts collected from Capital Theatre Company.

It is insisted that the pleadings show, (1) a substitution of tenants; (2) an estoppel of Macon Academy Music Company to claim the sum sued for; and (3) raise the question whether the plaintiff exercised its option under the original contract to relet the premises for the account of Howard and Wimberly, or its option to repossess the premises on default of Howard and Wimberly; and it is insisted (4) that the plea and answer raised an issue of fact as to whether said premises were sublet by the plaintiff at the best price obtainable by it.

It would answer no good purpose to set out seriatim each allegation of the plea and answer as amended, and undertake to show by citation of authority that it was not sufficient to make a substitution of tenants or work an estoppel. We shall content ourselves with mentioning some of the general rules applicable to cases like this, and with stating our conclusion.

It is only at the election of the owner that a subtenant becomes his tenant. Roberson v. Simons, 109 Ga. 360 (34 S. E. 604). But the owner is not compelléd to make the subtenant his tenant. “He may treat the person with whom he dealt as his tenant, and nothing done by such person can relieve him from any of the liabilities to the landlord which the relation imposes.” Fletcher v. Fletcher, 123 Ga. 470 (51 S. E. 418). “1. A landlord does not waive his right of action against his tenant merely by allowing a subtenant or assignee of the original tenant to remain in possession of the premises, even though he accept payment of the rents from the subtenant or assignee, with knowledge of such subletting or assignment. The original tenant may be released from liability by an agreement with the landlord for the substitution, or by the landlord’s electing to proceed against the subtenant as his own tenant.” Cuesta v. Goldsmith, 1 Ga. App. 48 (57 S. E. 983). In the same decision (p. 51) it is said: “Where the lease contains an express agreement or covenant by the lessee to pay rent, he remains liable for rent to accrue, though he assigns his lease. And this liability of the lessee is not affected by the fact that the landlord accepts payment of the rent from the assignee, nor by the fact that the landlord assents to the assignment.” See also Americus Mfg. & Improvement Co. v. Hightower, 3 Ga. App. 65 (59 S. E. 309); Hooks v. Bailey, 5 Ga. App. 211 (62 S. E. 1054); Schachter v. Tuggle Co., 8 Ga. App. 561 (70 S. E. 93). In the case of Baldwin v. Lampkin, 14 Ga. App. 831 (83 S. E. 369), where an exception was taken to .the charge of the court upon the right of the owner to relet the premises, this court said: “As already stated, there was testimony which authorized the jury to conclude that the defendant assented to a special agency conferring upon his landlord the right to relet the premises'to the best advantage, without any restrictions whatever upon this power; and if this was true, it was not necessary for the landlord to have obtained the consent or approval of the tenant who had vacated the premises under such circumstances; and, therefore, it was not error for the court to charge the jury that if the testimony in behalf of the plaintiff was true, he had the right to relet the premises without the knowledge, consent, or approval of the defendant.” In this connection, note the very explicit provision in the original lease contract that the owner might, upon default in the payment of. rent, sublet the premises as agent for the lessees, and still hold Howard and Wimberly liable for the unpaid rent.

In order to avoid repetition, we will simply say that a reference to the provisions hereinbefore quoted from the contract between Howard and Wimberly and Capital Theatre Company discloses that it was not the intention of the parties at the time the contract was made that there should be any substitution ,of tenants. The same is said of the contract of November 9, 1922, and in this connection special reference is made to the clause heretofore quoted therefrom wherein Macon Academy Music Company leased the premises to Capital Theatre Company and agreed that the premises were rented “for the account of G. T. Howard and Brown Wimberly,” etc. The letter of December 1, 1921, wherein Capital Theatre Company advised Howard and Wimberly that it agreed to “assume and carry out the rent of the Grand Theatre,” does not change the stipulations of the solemn written contract between the same parties; nor is Macon Academy Music Company bound by that letter. The original lease contract provided for subletting without any limitation as to tenants. In short, as to this feature of the ease it is our opinion that Macon Academy Music Company kept strictly within the terms of the original lease contract, and studiously avoided entering into any contract or committing any act that would either effect a substitution of tenants or estop it from proceeding against Howard and Wimberly for unpaid rent.

We think it clearly appears from the record that Macon Academy Music Company exercised its option to relet the premises for the account of Howard and Wimberly, and not its right to repossess them. The original lease contained this sentence: “Lessor, at its option, upon breach of any of the terms and conditions of this contract, may sublet the premises leased hereby, or any part thereof, ai the best price that it can obtain by reasonable effort under private negotiations, and charge the balance, if any, between the price of subletting and the contract price to the lessees and hold the lessees therefor. Deference to paragraph 9 of both counts of the petition shows this allegation: “The amounts for which the premises were thereafter rented . . were the best rent which petitioner was able to obtain for the premises, after diligent effort to rent same to the best advantage.” A portion of paragraph 8 of each answer contains the following: “They deny that this was the best rent which petitioner was able to obtain from the premises after diligent effort to rent the same to the best advantage.”

We can not avoid the conclusion that the pleadings present a question of fact as to whether or not “the sums obtained . . were

the best rent which petitioner was able to obtain for the premises,” etc. For this reason alone we reverse the judgment sustaining the general demurrer to the answer and striking the plea and answer. It follows that the verdict was erroneously directed.

Judgment reversed.

Broyles, G. J., concurs. Bloodworth, J., absent on account of illness.


text:
    18581.
    WOOLEY & COMPANY v. CITY OF ATLANTA.
    Decided March 7, 1928.

      Dorsey, Shelton & Dorsey, James O. Shelor, Ralph II. Pharr, for plaintiff.

      J. L. Mayson, C. S. Winn, for defendant.
   Luke, J.

A. C. Wooley & Company brought suit against the City of Atlanta for $2500 damages for interference with the right of ingress and egress, by reason of filling and grading the public street in front of leased premises, occupied for business purposes, alleging, among other things, that “petitioner’s leasehold interest was greatly lessened and damaged and has depreciated in value.” Upon the authority of Pause v. Atlanta, 98 Ga. 92 (26 S. E. 489, 58 Am. St. R. 290), and of Bass v. West, 110 Ga. 698 (36 S. E. 244), the allegations of the petition were sufficient to stand the test of the general demurrer, and the judgment sustaining the demurrer was error. See also 13 R. C. L. 142.

Judgment reversed.

Broyles, G. J., concurs. Bloodworih, J., absent on account of illness.


text:
    18583.
    HARTFORD ACCIDENT AND INDEMNITY CO. et al. v. THOMPSON, guardian.
    Decided March 7, 1928.

      E. J. Stoddard, T. Elton Drake, for plaintiffs in error.

      Key, McClelland & McClelland, contra.
   Luke, J.

A. C. Thompson, as guardian of the two minor children of J. W. Wadsworth, deceased, procured an award from Commissioner Land of the Industrial Commission of Georgia against Harrison Jones and Hartford Accident and Indemnity Company. The award was approved and adopted by the full commission. On appeal the superior court sustained the award of the commission, and the plaintiffs in error excepted.

Briefly stated, the salient facts in the case are as follows: Harrison Jones employed, for stated sums, parties to supervise the construction of a residence built for the use of himself and family, Jones paying the wages of the workmen and paying for all material. Jones was vice-president of the Coca-Cola Company, and had been for seven years. He had no other business connection. After office hours and on Sundays he would go out to where the said house was being built, but had nothing to do with the building operations. During the middle or latter part of October, J. W. Wadsworth was engaged in painting the house at so much per hour. He left the room where he and one Harris were working, to do work in another room of the house. Within a minute or a minute and a half, according to Harris’s testimony, Wadsworth “came back cursing; said, c Damned carpenter trying to kill me, — look here,’ ” and showed Harris his bleeding leg. Wadsworth was angry and in pain, and “came back just cussing.” • Wadsworth had not been gone long enough to have left the building and gotten hurt. The upstairs of the house was being cleaned up, cleared of pieces of flooring and other rubbish. At times a “little chunk” would come sliding down the stairs. R. E. Benning, a painter on the Jones house, swore that carpenters were “working around some on the stairway.” Dr. Maner testified that about November 1 he was called in to see Wadsworth, who had an abrasion about one and a half to two inches long on the front of his right leg, about half way between the foot and the knee; that the outer skin had been scraped off, and the wound appeared to be three or four days old; that the patient’s leg was swollen and infected; and that on about November 10 the patient died as a natural and proximate result of the injury. The foreman of the deceased had notice of the injury.

The exception chiefly relied upon, and extensively argued by the plaintiffs in error, follows: “The commission committed error in holding Harrison Jones to be an employer under the workmen’s compensation law, when it appeared from the proof that it was his house being built, and that house-building was not his regular trade, business, or profession.” The act we are considering (Ga. L. 1922, p. 67) reads (section 2 (a)) : “Employers shall include any municipal corporation within the State and any political division thereof, and any individual, firm, association or corporation engaged in any business operated for gain or profit, except as hereinafter excepted. . . .” (b) “Employee shall include every person . . except one whose employment is not in the usual course of the trade, business, occupation, or profession of the employer. . .” Section 15 of the act as amended (Ga. L. 1925, p. 283) provides: “This act shall not apply to ' . . employees not in the usual course of the trade, business, occupation or profession of the employer or not incidental thereto.”

Applying the act to the facts stated, we do not think that Jones was as a matter of fact an employer, or that Wadsworth was as a matter of fact an employee, within the meaning of the law. In this opinion we are confirmed by the decisions of other States construing similar acts. Some of those cases arc: Berry Co. v. Industrial Commission, 318 Ill. 312 (149 N. E. 278); Oilmen’s Reciprocal Ass’n v. Gilland (Tex. Com. App.), 291 S. W. 197; State ex rel. Lennon v. District Court, 138 Minn. 103 (164 N. W. 66); Oliphant v. Hawkinson, 192 Iowa, 1259 (183 N. W. 805, 33 A. L. R. 1433).

However, we think that both Jones and the insurance company are precluded from questioning the right of the commission to take jurisdiction of the case, for the following reasons: The policy under consideration is headed, “Standard Workmen’s Compensation and Employer’s Liability Policy.” It was primarily intended to cover, and did cover, cases coming under the workmen’s compensation law, that law being made a part of the contract “as fully and completely as if written herein.” “The premium is based upon the entire remuneration earned, during the policy period, by all employees of this employer engaged in the business operations described in said declarations, together with all operations necessary, incident or appurtenant thereto.” The insurer notified the commission that it had issued the policy. Nor do we think the fact that the policy also covered injuries cognizable at law changes the situation. The following pertinent language occurs in the award of the full commission: “We do not understand why an insurance carrier should write a compensation policy, collect the premium, notify the commission that such coverage is in force, and then seek to escape payment on the ground that there is no compensation liability against the employer for whom the compensation policy was issued. The insurance company tells us that there is a double coverage. Of course, there iso an agreement on the part of the carrier to defend the employer against any and all suits, but first of all it is a workmen’s compensation policy, and compensation must first be applied.” Where an insurance carrier, with full knowledge of the facts, agreed to compensate employees of an administrator for injuries received in a particular employment and received premiums for such insurance, it was held by this court that the insurer could ■not question the validity of the contract between the administrator and an injured employee or deny the existence of a master and servant relation between them, either on the ground that the administrator was unauthorized to employ labor for the particular purpose, or that the premises Were not subject to repair by the administrator. United States Fidelity &c. Co. v. Newton, 37 Ga. App. 70 (4) (139 S. E. 365). See also Maryland Casualty Co. v. Wells, 35 Ga. App. 759 (134 S. E. 788).

The exceptions based upon the introduction of evidence are defective, all of them but one, because the testimony complained of was not substantially set out, and because the name of the witness testifying was not stated; and one because much of the -witness’s testimony was admissible and the part which was alleged to be incompetent was not substantially set out or distinguished.

There was sufficient competent evidence in the record to support the award, and for no reason assigned did the judge of the superior court commit reversible error.

Judgment affirmed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.


author: Bkoyles, C. J.

text:
    18584.
    Metropolitan Life Insurance Co. v. Freeman.
    Decided March 7, 1928.

      Maddox, Maddox & Mitchell, for plaintiff in error.

      Willingham, Wright & Covington, Graham Wright, contra.
   Bkoyles, C. J.

The verdict was authorized by the evidence, and none of the grounds of the motion for a new trial show cause for a reversal.

Judgment affirmed,.

Luke, J., concurs. Bloodworili, J., absent on account of illness.


text:
    18616.
    ATLANTA & WEST POINT RAILROAD CO. v. SMITH.

      Decided March 7, 1928.

      Dorsey, Howell & Heyman, Post & Arnold, for plaintiff in error.

      Smith & Millican, Smith & Taylor, A. Sidney Gamp, contra.
   Luke, J.

In an action for damages for personal injuries, L. A. Smith, a minor, by his next friend, Earnest M. Smith, procured a verdict against Atlanta and West Point Eailroad Company for $10,000. The court overruled the defendant’s motion for a new trial, and the movant excepted.

The petition alleges that on August 6, 1926, L. A. Smith was employed by W. A. Potts to load peaches on a refrigerator freight-ear placed on a side-track at Newnan, Ga., by the defendant company; that, for the purpose of ventilation, said car contained an extra, or false, floor, built in sections out of small slats nailed to scantlings and raised some three or four inches above the main floor of the car; that in loading said car it was necessary and customary to close one of its two side-doors, and to begin stacking the peaches in each end of the car; that the car was therefore extremely dark while loading was in progress; that as the petitioner raised a crate of peaches to place it in position in the south end of the car, a slat, or slats, of one section of said false floor broke, and said section slipped apart, allowing the petitioner’s right foot to slip through to the main floor, and causing his right ankle to be so bruised, crushed, etc., that an infection set in which necessitated the removal of the greater part of the long bone extending from his knee to his ankle; that as a result of said injuries petitioner “has suffered untold pain and anguish, both mental and physical, and will continue to suffer pain and anguish, both mental and physical, throughout his natural life;” that “by reason of said injuries . . his ankle is stiff, his knee is stiff, and . . he has practically lost the use of his right leg, and . . ‘said injuries are permanent;” that at the time of said injuries petitioner was sixteen years of age, stout and able-bodied, and had an expectancy in life of 44.27 years; that the defective condition of said car was unknown to petitioner and could not have been discovered by him by the exercise of ordinary diligence; that said condition of said car was known to the defendant company, or should have been known to it by the exercise by it of ordinary diligence; that said Potts had no control of said car except to load it; that “defendant company transported said freight for hire and a consideration;” and that defendant was negligent: in failing to have the sections in said extra floor of the proper size; in allowing the slats of said sections to become worn, cracked, and broken; in not placing said sections in proper position; in not having the slats in said sections of proper length and durability; for failing to properly equip said car'with proper apparatus for loading; in placing said car for loading with a defective extra floor; and in not having said extra floor properly fitted and said sections properly placed.

The defendant denied the material allegations of the petition, and further pleaded that if the plaintiff received the injuries as alleged, “they were the result of his own negligence, and . . were contributed to by his negligence.”

Ground 5 of the motion for a new trial is controlled by the following rule of law: “An exception to the refusal of the court to award a nonsuit will not be considered where the jury has rendered a verdict against the defendant, and he excepts to the overruling of a motion for a new trial, assigning error upon the general grounds.” Gainesville &c. R. Co. v. Galloway, 17 Ga. App. 702 (2) (87 S.E. 1093).

Counsel for the plaintiff contended before the jury that if it returned a verdict against the railroad company, Eruit Growers Express would be responsible to the defendant company, and would have to pay the verdict. Counsel for the defendant promptly moved for a mistrial upon the ground that there was no evidence warranting such argument, and that it was improper and highly prejudicial to his client. After instructing the jury that the said argument was improper, and that they should not be influenced by it at all, the court overruled the motion. Within the intendment of the law, these instructions removed any prejudicial effect that might possibly have resulted from the improper argument, and the judgment overruling the motion for a mistrial was not error. Civil Code (1910), § 4957; Mayor &c. of Americus v. Gammage, 15 Ga. App. 805 (2) (84 S. E. 144). This disposes of the sixth ground of the motion for a new trial.

Error is alleged because the court failed to charge the following principle of law: “No person shall recover damages from a railroad company for injury to himself or his property where the same is done by his consent, or is caused by his own negligence;” the defendant having pleaded “that if said plaintiff received injuries as claimed by him, the same were the result of his own negligence.” The principle of law referred to in this ground of the motion for a new trial is stated in the first part of section 2781 of the Civil Code (1910), and must be given in charge to the jury when the pleading and the evidence demand it. However, a careful reading of the brief of evidence shows that the evidence did not demand the charge indicated; and this exception is controlled by the following rule of law: “The failure to give instructions to the jury not demanded by the evidence will, in the absence of a written request to so charge, in no event be cause for a new trial.” Cooper v. Nisbet, 119 Ga. 752 (3) (47 S. E. 173); Shields v. Ga. Ry. &c. Co., 1 Ga. App. 176 (57 S. E. 980); Savannah Electric Co. v. Thomas, 30 Ga. App. 418 (118 S. E. 181); Van Dyke v. Van Dyke, 31 Ga. App. 67 (2) (119 S. E. 436).

Complaint is made of the following excerpt from the charge of the court: “Was the car in question defective as claimed by the plaintiff, and, if so, could this defect have been discovered by the railroad company by the exercise of ordinary care? If you should answer either of these questions in the negative, then that would end your investigation, and you would find for the defendant in this case. On the other hand, if you should find from the evidence in this case that the car in question was defective, as claimed by the plaintiff, and that the plaintiff, under the circumstances as shown in the evidence, by the use of ordinary care, could not have avoided the consequences resulting to him from the negligent act of the defendant companj'- in furnishing a defective ear to be used by W. A. Potts and his servants, and if you further believe that the plaintiff’s injuries, if he sustained any on this occasion, were the result of and followed from this occurrence as claimed by him. then you would find for the plaintiff.” “Defendant contends that this charge . . was error, because it failed to call to the attention of the jury that there was due by plaintiff the exercise of ordinary care to have discovered any defect in the condition of the car.” It would be a far-fetched conclusion to say, from anything appearing in the record in this case, that the evidence indicates that there was any defect in said car which the plaintiff could have discovered by the exercise of ordinary care, or that he failed to exercise ordinary care in loading the car. However, in sustaining a verdict in a ease somewhat similar to the case at bar, the court laid down the following as the law: “Where a railroad company furnishes to one of its patrons a car to be used by him in loading freight to be delivered to it for transportation, it is liable to a servant of the patron for injuries resulting to such servant from the defective construction of the car; provided the defect be of such a character as to be discoverable by the exercise of ordinary care on the part of the railroad company, and provided further that the injuries complained of were inflicted under such circumstances as that the person injured, by the exercise of ordinary care, could not have avoided the consequences resulting to him from the negligent act of the railroad company in furnishing for the use of such patron and his servants such defective car.” Savannah, Florida & Western Ry. Co. v. Booth, 98 Ga. 20 (25 S. E. 928). See also Roy v. Ga. R. &c. Co., 17 Ga. App. 34 (2) (86 S. E. 328). This assignment of error does not disclose reversible error.

Leading up to his' charge upon the measure of damages for pain and suffering, the court instructed the jury as follows: “Damages are given as compensation for injury done, and generally this is the measure, where the injury is of a character capable of being estimated in money. That is, if the law allows damages to be recovered in a case like this at all, it seeks to give fair pajr or compensation for the injury done, and you should keep this rule in mind in passing on this question. The plaintiff insists that his injuries are of the sort claimed by him, serious and continuous, and will continue in the future. It is for you to determine from the evidence just what his injuries were and are. The defendant company would not be liable for any condition the plaintiff may be in not due to this occurrence. If the defendant is liable at all, it is liable only for such consequences as proximately follow this particular occurrence, and, as I have said, you will determine from the evidence what sort of injuries the plaintiff received, and their nature and character.” The contention is that the petition sots forth no claim for damages other than for pain and suffering, that the evidence discloses no financial loss resulting from the alleged injuries, and that since the court charged separately the rule for awarding damages for pain and suffering, the effect of the foregoing excerpt was to allow the jury to award separate and additional damages for the alleged injuries. The first part of the excerpt under consideration is a part of section 4502 of the Civil Code (1910), and of course correctly states the primary object for which damages are awarded. The excerpt states correct general rules of law, and is rather in the nature of an introduction to the fuller charge of the rule governing a recovery for pain and suffering. We do not think the jury could have been misled by it, and we hold that it is not subject to the attack made upon it in this ground of the motion.

In the last ground of the motion for a new trial it is contended that the plaintiff was seeking to recover the actual monetary value of his lost earning capacity, and that the court erred in failing to instruct the jury that the minor’s earnings belonged to the father up to the time he became twenty-one years of age. A complete answer to this exception is that no such recovery was sought. The petition did not ask it; no evidence was introduced to prove it; and the court did not err in failing to charge it.

After a careful reading of the one hundred and odd pages of the brief of evidence, we have reached the conclusion that the case is a very close one, especially as to whether or not the infection of the bone which caused all the trouble resulted from the injury near the minor’s ankle. However, being bound by the rule of law applicable to conflicting evidence, we are constrained to hold that there was evidence to support the verdict, and that the court did not err in overruling the general grounds of the motion for a new trial.

Judgment affirmed.

Broyles, O. J., concurs. Bloodworth, J., absent on account of illness.


text:
    18618.
    Western Union Telegraph Co. v. Smith.
    Decided March 7, 1928.
    Rehearing denied April 10, 1928.
   Broyles, C. J.

1. The court did not err in any of its rulings upon the demurrer to the petition as amended.

2. A third person who is neither the sender nor the addressee of a telegraph message may sue the telegraph company for its negligence in failing to deliver the message, where the message shows or the company is otherwise informed of his beneficial interest therein. 37 Cyc. 1716, and cases cited in note 17. Under this ruling and the facts of the instant case, the plaintiff was entitled to recover; and the verdict in his favor for $117.10 was authorized by the evidence.

(a) Under the principle of the ruling in Western Union Telegraph Co. v. Mansfield, 93 Ga. 349 (20 S. E. 650), the plaintiff was entitled to recover the statutory penalty of $25.

3. None of the grounds of the motion for a new trial show cause for a reversal of the judgment.

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.

Graham Wright, Francis B. Slarlc, for plaintiff in error.-

John K. Davis, contra.


text:
    18628.
    Nix v. The State.
    Decided March 7, 1928.
   Broyles, C. J.

The defendant’s conviction of manufacturing intoxicating liquor was not authorized by the evidence, and the refusal to grant a new trial was error.

Judgment reversed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.

D. W. Mitchell, for plaintiff in error,

cited: Ga. App. Rep.: 25/243; 2/534 (2); 27/596; 28/347; 31/784; 32/18.

John G. Mitchell, solicitor-general, contra,

cited: Ga. App. Rep.: 25/493; 27/195; 28/262; 32/74; 35/592.


text:
    18632.
    Metropolitan Life Insurance Co. v. Mapp.
   Luke, J.

1. Where in an action upon a life-insurance policy the petition alleged that a copy of the policy could not be attached to the petition, because it had been delivered to the insurer for the purpose of collecting the insurance, and the insurer refused to return the policy to the beneficiary, and where a demurrer, based upon the ground that no copy of the policy was attached to the petition, was overruled, and the defendant excepted pendente lite to that ruling; and where, when the policy had been produced at the trial term, there was attached to the petition, by amendment, an exhibit containing a copy of that part of the policy which appeared above the signatures of the officers of the insurer, as well as a schedule (referred to in and made a part of the policy) stating the number and date of the policy, the name and the age of the insured, the amount of the insurance, and the weekly premiums, and where the demurrer was not renewed as to' the petition as amended, the amended petition was not subject to the attack made by the demurrer, and the court did not err in overruling the demurrer. In this connection see Civil Code (1910), § 5541; Southern Mutual Ins. Co. v. Turnley, 100 Ga. 296 (27 S. E. 975); Gaynor v. Travelers Ins. Co., 12 Ga. App. 601 (77 S. E. 1072). See also General Accident &c. Assurance Corp. v. Way, 20 Ga. App. 106 (92 S. E. 650).

Decided March 7, 1928. .

Smith, Hammond & Smith, for plaintiff in error.

Shelf er & Dunaway, contra.

2. A hospital-card, offered in evidence for the sole purpose of showing that the insured was treated at a hospital on a stated date, was objected to because it was not shown to be the original record, and because it was hearsay. The witness undertaking to lay the foundation for the card which purported to be a history of the insured’s case testified that he did not know who made out the card, that it was simply a paper found in the hospital, and that another physician at the hospital handed him the card, but did not say whether or not it was an original card. Held, that the card was properly rejected.

3, The defendant pleaded that on January 5, 1925, the date of the policy, the insured had tuberculosis of the lungs and decompensation of the heart, and that on or about February 20, 1923, he was treated by a physician at Grady Hospital for decompensation of the heart, and had tuberculosis, and that by reason of stipulations in the policy the foregoing facts made it void; also that the policy was void because of certain false and fraudulent representations made in the application for insurance, which were directly contradictory of the fact that the deceased had been treated in a hospital as stated above, and at that time had pulmonary tuberculosis. Held, that the evidence, which was sharply conflicting as to every charge in the plea, did not demand a verdict for the defendant. For no reason alleged does the record disclose reversible error, and the superior court did not err in overruling the certiorari.

Judgment affirmed.

Broyles, O. J., concurs. Bloodioorth, J., absent on account of illness.


text:
    18638.
    Northwestern Fire & Marine Insurance Co. v. Bank of Thomasville et al.

    Decided March 7, 1928.
   Broyles, C. J.

1. Where a motion for a new trial is pending in the trial court, the movant can not bring to this court a direct bill of exceptions complaining of rulings made upon the trial, and of the verdict and the judgment based thereon. Kelly & Jones Co. v. Moore, 125 Ga. 382 (54 S. E. 118). That ruling, however, is not applicable to a case where the pending motion for a new trial was not filed within thirty days from the date of the trial, the term of the court lasting longer than thirty days. In such a case the motion for a new trial is void and there is no motion pending. See, in this connection, Civil Code (1910), § 6089; Josey v. Groves, 138 Ga. 317 (75 S. E. 135). Under the ruling just made, this court has jurisdiction of the instant case and the motion to dismiss the writ of error is denied.

2. Where a policy of fire-insurance provides that it shall be void if any change, other than by the death of the insured, take place in the interest, title, or possession of the subject of insurance, and where the interest or title of the insured was the equitable title to the property insured, remaining in him after he had executed a security deed conveying the property to a life-insurance company (its interest being covered by a “New York standard mortgagee clause” attached to the policy of fire insurance), and received from the life-insurance company a bond to reconvey him the title on payment of the loan, and where the insured, before the date of the fire, and without the knowledge or consent of the fire-insurance company, transferred and assigned the bond for title to third persons, a change in his interest (if not in his title) in the property insured had taken place, and the policy of insurance, under its provisions, had become void, and the assignees of the bond for title could not maintain an action on the policy. This is true although the bond for title was assigned for the purpose of securing a debt of the insured to the assignees. See, in this connection, Guaranty Investment Co. v. Athens Engineering Co., 152 Ga. 596 (2) (110 S. E. 873); Phoenix Insurance Co. v. Asherry, 95 Ga. 792 (22 S. E. 717); Athens Mutual Ins. Co. v. Evans, 132 Ga. 703 (64 S. E. 993); Widincamp v. Phenix Insurance Co., 4 Ga. App. 759 (62 S. E. 478). After the insured had conveyed the property by security deed to the life-insurance company, and received from it a bond to reconvey the title, he had no title, but merely a right to a reconveyance of the title on payment of the debt (Wood v. Dozier, 142 Ga. 538, 540, 83 S. E. 133), and that right was fully and effectually acquired by the assignees of the bond for title. The cases cited by counsel for the defendant in error dealing with ineffectual attempts to transfer and assign deeds are not applicable to transfers and assignments of bonds for title.

3. Under the above-stated rulings a finding in favor of the defendant was demanded, and the court (sitting without a jury) erred in rendering a judgment for the plaintiff. As this ruling is controlling in the case, the other assignments of error in the bill of exceptions are not considered.

Judgment reversed.

Bloodworth, J., ooneurs, Luke, J., disqualified.

Smith, Hammond & Smith, J. J. Hill, J. O. Gibson, for plaintiff in error.

James L. Dowling, contra.


text:
    18645.
    STAPLER v. THE STATE.
    Decided March 7, 1928.
    Rehearing denied April 10, 1928.

      Shackelford, Shackelford & Davis, Hrwin, Hrwin & Nix, for plaintiff in error.

      Pemberton Gooley, solicitor-general, contra.
   Luke, J.

Alton Stapler was charged with murdering Charley Hodge by shooting him with a gun. While there is no evidence to show that the defendant intentionally killed the deceased, there is some evidence that the defendant was handling the gun in a reckless and unlawful manner, and that as a result thereof the deceased was killed; and this evidence sustains the verdict of involuntary manslaughter in the commission of an unlawful act; the penalty for which was fixed at a minimum of one year. The deceased was killed while standing in the doorway of a church, three or four steps high, and the defendant was on the ground a few feet from him. One witness swore: “Charley was standing in the church door, and Alton came through the church and came on out the door and run his hand in his pocket and got a shell, and unbreached the gun and cocked it and shot him. Alton said, ‘What you bet I won’t shoot you ?’ and Charley said, ‘ I don’t know,’ and he took a shell out of his pocket and unbreached the gun and put it in, and shot him, and said ‘ Good-bye son, I’ll see you again.’ After he put the shell in it, he held the gun just this way. The gun shot him. Charley is dead. I saw him fall.” This evidence authorized the jury to conclude that the defendant pointed the gun at the deceased, which is an unlawful act. Penal Code (1910), § 349. This court has no authority to say that the jury must disbelieve this testimony. Even though this witness later made conflicting statements, whether a witness is successfully impeached by conflicting statements, and which of the conflicting statements should be believed, are matters exclusively within the province of the jury, and this court has no authority to invade that province, even though we might have rendered a different verdict had we been sitting as jurors. The trial judge did not see fit to disturb the verdict, and, there being some evidence to support it, we have no power to do so.

The court did not err in excluding testimony offered by the defendant by which he sought to prove, as a part of the res geste, declarations made by him after the killing, as to its being accidental, the exclusion of which is complained of in the first four special grounds of the mption for a new trial. None of these statements sought to be introduced in evidence were a part of the res gestae.

The court did not err in the instructions on involuntary manslaughter, complained of in the 5th and 6th grounds, or in the instruction that the defendant “can not be cross-examined unless he sees fit,” as complained of in the 7th ground of the motion, nor, in the absence of a timely written request, in failing to give the instructions on involuntary manslaughter set out in the 8th ground. We have read the court’s charge carefully, and find it adapted to the issues and fair to the accused. The jury were instructed that involuntary manslaughter could be “the killing of a human being without any intention to do so, but in the commission of an unlawful act, or a lawful act without due caution and circumspection,” and were also instructed that if they believed that the defendant, without any intention to kill, pointed the gun at the deceased, the defendant might be guilty of involuntary manslaughter.

There was some evidence to authorize the verdict rendered, and the special grounds of the motion for a new trial show no legal reason for a reversal.

Judgment affirmed.

Broyles, G. J., concurs. Bloodworth, J., absent on account of illness.


author: Bboyles, C. J.

text:
    18646.
    Dillard v. The State.
    Decided March 7, 1928.
   Bboyles, C. J.

The evidence relied on by the State for the conviction of the accused was circumstantial and was not sufficient to exclude every reasonable hypothesis than that of his guilt. It follows that the trial court erred in refusing to grant a new trial.

Judgment reversed.

Lulce, J., concurs. Bloodworth, J., absent on account of illness.

W. E. Mann, W. Gordon Mann, for plaintiff in error,

cited: 27 Ga. App. 581, 601, 603; 14 Ga. App. 610; 16 Ga. App. 201; 31 Ga. App. 784.

John 0. Mitchell, solicitor-general, contra,

cited: 32 Ga. App. 74; 29 Ga. App. 222; Park’s Penal Code Supp., vol. 11, § 448 (2).


author: Beoyles, C. J.

text:
    18664.
    Hixon v. The State.
    Decided March 7, 1928.

      O. N. Chambers, J. M. C. Townsend, for plaintiff in error.

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

The accused was convicted of robbery. There was direct evidence as to a “hold up” by the defendant, but the evidence as to his intent in so doing (whether he “held up” the person named in the indictment with the intent to rob him, or with the intent to give him a beating, or with the intent to procure his arrest for automobile speeding), was wholly circumstantial, and was not sufficient to exclude every reasonable hypothesis save that of his guilt of the offense charged. It follows that his conviction was unauthorized and that the refusal to grant a new trial was error.

Judgment reversed.

Luke, J., concurs. Bloodworlh, J., absent on account of illness.


text:
    18666.
    LAMP v. THE STATE.

      Decided March 7, 1928.

      Glaxton & Cook, B. L. Stephens, T. B. Hightower, for plaintiff-in error.

      Bred Kea, solicitor-general, contra.
   Luke, J.

It is well settled that the jury has the right to believe a part of the defendant’s statement and to reject all other parts, and that if any part of the statement authorizes a charge on the law of manslaughter, such a charge should be given by the court. In the instant ease the defendant, in his statement to the jury, said that when he met the deceased at the time of the killing, the deceased, without any provocation from the defendant, said to him: “You are a God damn lie and a son of a bitch; I’ll cut your God damn throat;” that immediately thereafter the deceased advanced upon him with a knife in his hand, and he (the defendant) shot and killed the deceased. The jury were authorized to reject everything else said by the defendant in his statement, and to find that this sudden and unprovoked assault by the deceased and his profane and insulting language, directed at the defendant, were sufficient to excite a sudden and violent passion in the defendant’s breast and to cause him to kill the deceased without any malice, either express or implied. The Supreme Court’s ruling that in the former trial there was no evidence as to mutual combat (161 Ga. 57, 137 S. E. 765) is not contrary to this holding. There have been scores of legal convictions of voluntary manslaughter in cases where mutual combat was not involved.

The defendant has been twice convicted, once for murder and now for manslaughter. There is sufficient evidence to authorize the conviction, and the grounds of the motion for a new trial show no reversible error.

Judgment affirmed.

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


text:
    18681.
    BOWEN v. THE STATE.
    Decided March 7, 1928.

      Stafford B. Brooke, for plaintiff in error.

      John Q. Mitchell, solicitor-general, contra.
   Luke, J.

The defendant was convicted of possessing intoxicating liquor, and assigns error on the refusal of the court to allow an amendment to his motion for a new trial, and on the overruling of the motion for a new trial. Relative to the amendment the court passed the following order: “This amendment being presented on date after motion overruled, the same is disallowed.” The court did not err in disallowing the amendment. Neither did the court err in overruling the motion for a new trial, based on the general grounds only, as the verdict was authorized by the evidence and no error of law is shown.

Judgment affirmed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.


author: Bloodworth, J.

text:
    18811.
    REDDING v. THE STATE.
    Decided March 9, 1928.
    Rehearing denied March 19, 1928.

      N. F. Culpepper, J. P. Atkinson, for plaintiff in error.

      W. Y. Atkinson, solicitor-general, J. F. Hatchett, contra.
   Bloodworth, J.

The petition for a change of venue is based upon two propositions:

1. “Petitioner shows that it is impossible for him to have a fair trial, and that it is impossible to get an impartial jury.” Under the evidence, applied to the law as announced in a number of decisions of this court and of the Supreme Court, this court can not say that the judge abused the discretion vested in him in overruling this branch of the petition. Rawlins v. State, 124 Ga. 31 (2), 40 (52 S. E. 1); Coleman v. State, 141 Ga. 737, 738 (82 S. E. 227); Davis v. State, 23 Ga. App. 223 (98 S. E. 111); Owens v. State, 30 Ga. App. 108 (17 S. E. 119).

2. “Petitioner further shows that there is danger of violence being attempted to be committed on him if he is carried back to Meriwether county for trial, and especially is this danger apparent and urgent should the jury trying this defendant spare his life or find him guilty of manslaughter; in which event there is danger that this petitioner would be lynched.” This allegation is supported by affidavits of witnesses who swear that in their opinion, in the event the accused was acquitted at the trial, there would be great danger of his being killed by the friends of the deceased, and that “if any verdict was rendered other than that of death,” the defendant would be in great danger of violence. Nowhere in the counter-showing made by the State is this particular evidence contradicted or rebutted. Citing the statute relative to the change of venue (Ga. L. 1911, p. 74) and a number of decisions to support the ruling, this court, in Butler v. State, 26 Ga. App. 435 (106 S. E. 744), held: “Upon the hearing of a motion to change the venue in a murder case, upon the ground that there is probability or danger of lynching or other violence being done to the petitioner, if the evidence submitted reasonably shows that there is probability or danger of lynching, or other violence, then it is mandatory upon the judge to change the venue to some county in the State where, in his judgment, the petitioner can be safely tried.” This court, in Balkman v. State, 28 Ga. App. 39, 40 (109 S. E. 925), said also that “While the evidence was in sharp conflict as to whether the accused, if he escaped a death sentence upon his trial, would be lynched, we think that under all the facts of the case it was sufficient to reasonably show that under such circumstances he would be in danger of being lynched, or of having other violence done to him. It follows that the court erred in overruling the motion.” Moreover, the evidence shows that when the accused was first arrested “the officers and authorities arranged for defendant to be kept in jail in Cordele in Crisp county without any commitment until a special term oí Meriwether superior court was called for the purpose of trying defendant; . . that the defendant was quietly and privately brought to the jail of Meriwether county a short time before his trial, and when a mistrial resulted he was immediately removed from the common jail of Meriwether county, because it was considered unsafe for him to remain in such jail, and it was considered that he was in danger of having violence committed upon him, and in danger of being lynched if he remained in such jail, and for these reasons he was removed from said jail and carried to the common jail in Coweta county.”

Under all the facts and circumstances, and under the law as set forth above, we are constrained to hold that the second branch of the motion to change the venue as above set forth is meritorious, and therefore the trial judge erred in overruling the motion.

Judgment reversed.

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


author: Jenkins, P. J.

text:
    18359.
    Powell v. Griffith.
   Jenkins, P. J.

1. While this court may, under section 6149 of the Civil Code of 1910, require the clerk of the court below to certify and send up any portion of the record of the ease in that court which has not been brought up, and which, in the opinion of this court, is necessary to be before it in order to adjudicate fully and fairly the questions at issue and the alleged errors, and while this court may, under section 6151 of the Civil Code, when the incompleteness of the record in a material point is suggested upon the oath of a party or his counsel, consider as a part of the record the admission in writing of the opposite party as to the existence and effect of the omitted part, these provisions of the statute have reference only to the record actually made and existing in the court below. Such a record can not be augmented or altered by the trial judge (Jones v. State, 64 Ga. 697 (2); Minhinnett v. State, 106 Ga. 141 (2), 32 S. E. 19); nor can it be augmented, altered, or amended by agreement of counsel. Board of Education v. Day, 128 Ga, 156 (57 S. E. 359). Accordingly, where, as here, the brief of evidence, as approved by the trial judge, recites that a certain contract was introduced in evidence, “copy of which is hereto attached, marked exhibit A,” but it is not attached to the brief of evidence or otherwise set out therein, and where the clerk of the trial court certifies, in response to an order of this court, that such contract was never filed in his office as a part of the brief of evidence, so as to become a part thereof, this court can not consider the contract as a part of the record. This is true even though counsel may agree that the contract was in fact introduced in evidence, and agree as to its contents. Accordingly, the case must be decided under the general rules of law, without reference to any special stipulations embodied in the rent contract.

Decided March 16, 1928.

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

2. “It is a general rule of law in force in this State that, in the absence of a contract giving him the right so to do, the tenant can not lawfully remove fixtures annexed to the freehold, which he has placed on leased land. The exception to this rule exists only in the case of trade fixtures. Section 3696 of the Civil Code is construed to refer to trade fixtures.” Wright v. DuBignon, 114 Ga. 765 (40 S. E. 747, 57 L. R. A. 669). Under the provisions of this section of the code a tenant during the term or during a continuation thereof, or while he is in possession under the landlord, may remove such fixtures erected by him. After the term and possession are ended, they are regarded as abandoned to the use of the landlord, and become the latter’s property. Accordingly, in the instant suit in trover to recover certain shelving supplied by the tenant for use in the rented property, the lease having expired, they could not be recovered, even as trade fixtures, if attached to the realty.

3. It appears, from undisputed evidence, that the shelving was attached to and built upon certain two by fours laid upon the floor of the storeroom. The evidence is in conflict as to whether the two by fours were attached to the flooring or not. The evidence for the defendant indicated that such was the fact; the evidence for the plaintiff indicated that such base supports were not attached to the flooring, and were' not intended to be, except that in nailing the shelving to the two by fours a few of the nails might have penetrated a little beyond the two by fours, thus slightly entering the flooring. Exception is taken to the charge of the court to the effect that if the shelving was not intended to be attached to the realty, but that in driving nails through the shelving into the base support some of them unintentionally were made to protrude through such unattached base support and into the flooring, this fact would not, as a matter of law, make the shelving a part of the realty. The court fully submitted to the jury the issue of fact as to whether the base supports were otherwise attached to the realty. Held: There was no error in this charge.

4. The evidence being in conflict as to whether the shelving was attached to the realty so as to constitute it a fixture, and the judge having properly submitted this issue to the jury, the verdict in favor of the plaintiff can not be disturbed.

Judgment affirmed.

Stephens and Bell, JJ., concur.


author: Jenkins, D. J.

text:
    18363.
    Payne v. Fourth National Bank of Macon.
   Jenkins, D. J.

1. “While, under the Civil Code (1910), §§ 3543 and 3544, a surety will be discharged by a novation changing the nature or terms of his contract without his consent, and therefore the acceptance by a payee bank, without the agreement or consent of the surety, of a new note in renewal or payment of the original note -signed by the surety will discharge him from liability, such an acceptance by the payee bank, when induced by the actual fraud of the maker in presenting the renewal instrument with the signature of the surety forged thereon, and without knowledge or reasonable ground to suspect, on the part of the bank, that the signature was in fact a forgery, will not release the surety, where it appears that upon discovery of the fraud of the maker the bank promptly disaffirmed its previous acceptance of the renewal note, by regaining possession of the original note and suing thereon.” Biddy v. People’s Bank, 29 Ga. App. 580 (116 S. E. 222), and cit. In the instant case, while it does not appear that the plaintiff bank actually regained possession of the original note, it does appear that -the plaintiff, upon the defendant’s testifying in a suit previously brought upon the renewal note that he did not sign such renewal note, dismissed the previous action and brought suit upon the original note, the execution of which was admitted by the defendant, and upon which, it appears by the agreed statement of facts, there was a balance due in the amount of the verdict returned in favor of the plaintiff.

Decided March 16, 1928.

O. W. Foy, for plaintiff in error.

Jones, Jones & Johnston, Homer Beeland, contra.

2. Although the bill of exceptions recites that the court, upon the agreed statement of facts, directed a verdict in favor of the plaintiff, no error is assigned thereon; the motion for a new trial presents the usual general grounds only, and the bill of exceptions assigns error only upon the overruling of that motion. The verdict is authorized by the evidence.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    18366.
    Miles v. Swift.
    Decided March 16, 1928.
   Jenkins, P. J.

1. An order overruling a demurrer to an affidavit of illegality is such a final judgment as will support a writ of error therefrom. Civil Code (1910), § 6138; Artope v. Barker, 72 Ga. 186; Chattooga County v. Glenn, 29 Ga. App. 114 (113 S. E. 704). Accordingly, the motion to dismiss the writ of error must be denied.

2. “A defendant in fi. fa. can not by affidavit of illegality set up an unliquidated demand in his favor against the judgment demand of the plaintiff in fi. fa.” Allen v. Duval Motor Co., 36 Ga. App. 336 (136 S. E. 479); Leavel v. Frey, 133 Ga. 723 (66 S. E. 916). Accordingly, the affidavit of illegality interposed by the defendant in fi. fa., by which it was sought to set up such an unliquidated claim for damages, should have been dismissed on demurrer, and the proffered amendment, setting up such additional claim, should not have been allowed over the objection of the plaintiff.

Judgment reversed.

Stephens and Bell, JJ., concur.

J. B. Moore, for plaintiff. M. H. Williams, for defendant.


author: Bell, J.

text:
    18375.
    Seaboard Air-Line Railway Co. v. McIntosh County et al.

   Bell, J.

1. Where the State tax for the year 1925 was 5 mills, a county tax levy to pay legal indebtedness of a county, due or to become due during the year or past due, 3-% mills; to pay sheriff, jailer, or other officers the fees that they may be entitled to out of the county, % mill; to pay expenses of the county for bailiffs, non-resident witnesses, fuel, servant hire, stationery, and the like, % mill; to pay jurors a per diem compensation, 1 mill; to pay any other lawful charge against the county, % mill, aggregating 6 mills, was not illegal in that it exceeded the amount which the county authorities were authorized to levy for such purposes. Central of Ga. Ry. Co. v. Wright, 165 Ga. 1 (139 S. E. 890); Central of Ga. Ry. Co. v. Terrell County, 37 Ga. App. 599 (141 S. E. 79); Central of Ga. Ry. Co. v. Wright, 165 Ga. 631 (142 S. E. 292); Central of Ga. Ry. Co. v. Jones County, 37 Ga. App. 763 (142 S. E. 301); Central of Ga. Ry. Co. v. Effingham County, 37 Ga. App. 766 (142 S. E. 303); Wright v. Central of Ga. Ry. Co., 36 Ga. App. 382 (137 S. E. 98); Central of Ga. Ry. Co. v. Wright, 36 Ga. App. 386 (137 S. E. 95); So. Ry. Co. v. Wright, 36 Ga. App. 391 (137 S. E. 98); A. C. L. Railroad Co. v. Grady County, 32 Ga. App. 261 (122 S. E. 816); Central of Ga. Ry. Co. v. Wright, 33 Ga. App. 96 (125 S. E. 520).

2. Where the taxpayers in general had paid their taxes for the year and executions had been issued against those who had defaulted in the payment of the same, including the plaintiff in error, and where, after a levy upon its property, the plaintiff in error filed an affidavit of illegality, it was not then lawful for the county authorities to amend the tax levy by reducing the amount levied to pay the legal indebtedness of the county, as indicated above, and by adding the equivalent of such reduction to the amount levied for a separate and distinct purpose; and the court, upon the trial of the issue formed by the affidavit of illegality, properly disregarded such attempted amendment of the tax levy. Ala. Great So. R. Co. v. Wright, 34 Ga. App. 639 (130 S. E. 918).

3. Such amendment could not be considered either as reducing the amount originally levied to pay the legal indebtedness nor as an admission by the county that the lesser amount mentioned in the amendment was all that was necessary to be levied for that purpose, and therefore as establishing that the levy was exorbitant to the extent of such attempted reduction. See Civil Code (1910), § 505.

4. It does not appear from the facts cf this ease that the tax levy was illegal in any part because the grand jury had made no recommendation concerning it. 36 Ga. App. 382 (supra).

Decided March 16, 1928.

Conyers & Gowen, for plaintiff in error.

Tyson & Tyson, contra.

5. The court did not err in rendering judgment against the affidavit of illegality.

Judgment affirmed.

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


text:
    18374.
    Seaboard Air-Line Railway Co. v. McIntosh County et al.

    Decided March 16, 1928.
   Bell, J.

1. Where a levy of taxes by the county authorities included an item “to pay legal indebtedness of the county due, past due, and to become due during the year, 8 mills,” it was permissible to amend the levy by explaining that five mills of this amount should “be applied to the bonded indebtedness of the county and the remaining three mills to other indebtedness.” See Ala. Great So. R. Co. v. Wright, 34 Ga. App. 639 (130 S. E. 918), and cit.

2. On the other hand, a subsequent amendment, by which it was sought to reduce the levy for certain purposes and to add the equivalent of the reduction to items levied for separate and distinct purposes, amounted, under the facts appearing, to a new levy affecting only the plaintiff in error and other delinquent taxpayers, after “approximately all or about four fifths of the taxes had been collected,” and, upon the trial of the issue formed by the affidavit of illegality, the court properly refused to consider this amendment for any purpose, either for or against the plaintiff in error.

3. The first amendment of the tax levy in this case being legitimate and proper, the levy as thus amended (being for the year 1924) embraced the following items: to pay legal indebtedness of the county due, past due, and to become due during the year, 3 mills; to pay the lawful fees of coroner, sheriff, and other officers, % mill; to pay expenses of bailiffs, nonresident witnesses, fuel, stationery, and the like, % mill; to pay the per diem of jurors, 1 mill; aggregating 5 mills; which was 100 per cent, of the State tax. Held,: The levy as so amended was not illegal as being in excess of the amount of tax which the county authorities were authorized to levy for such purposes, irrespective of any action or recommendation by the grand jury, See, in this connection, Seaboard A.-L. Ry. Co. v. McIntosh County, ante, 43.

4. The court did not err in rendering judgment against the affidavit of illegality.

Judgment affirmed.

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

Conyers & Qowen, for plaintiff in error.

Tyson & Tyson, contra.


text:
    18386.
    Cone v. Hunter.
   Jenkins, P. J.

1. A judgment sustaining a demurrer to a plea to the jurisdiction is not a final judgment. Baldwin v. Lowe, 129 Ga. 711 (59 S. E. 717). Where a general demurrer to a petition is overruled, and the defendant takes the case to the Court of Appeals by bill of exceptions assigning error upon that ruling, he can not also properly assign error upon an interlocutory judgment sustaining a demurrer to his plea to the jurisdiction. Turner v. Camp, 110 Ga. 631 (2), 632 (36 S. E. 76); Cox v. Hardee, 135 Ga. 80 (5), 90 (68 S. E. 932); Armor v. Stubbs, 150 Ga. 520 (104 S. E. 500); Thomas v. Berry, 151 Ga. 7 (4) (105 S. E. 478). See also Douglas v. Hardin, 163 Ga. 643 (136 S. E. 793). Accordingly, the assignment of error as to the judgment sustaining the demurrer to the plea to the jurisdiction can not be considered.

2. Although time is not generally of the essence of a contract, it may become so by express stipulation or reasonable construction (Civil Code of 1910, § 4268 (8)), and it is competent for the parties to a series of promissory notes, maturing monthly through several years, to provide that in case of default in the payment of any two of them, and a continuation of such default for a specified period, the entire series shall, at the option of the holder thereof, become due and collectible. Kilerease v. Johnson, 85 Ga. 600 (11 S. E. 870); Stocking v. Moury, 128 Ga. 414 (57 S. E. 704). Such a provision may be contained in a deed executed contemporaneously with the notes as security for their payment, and the stipulation is enforceable though the notes be silent as to it. Jones v. Norton, 9 Ga. App. 333 (71 S. E. 687). Accordingly, where the payee of such a series of notes, who was also the grantee in a deed executed to secure their payment, indorsed them to a third person, to whom he transferred his title and interest under the deed, the transferee, on default in payment of the notes as provided for by the deed, and on his exercise of the option to declare all the remaining unpaid notes due, could proceed to enforce their collection as against the payee and grantee; and the suit was not demurrable as being prematurely brought.

3. The petition having alleged that eight of the series of notes sued on were past due more than the period provided for by the contract, and having set forth the plaintiff’s exercise of his option, the demurrer upon the ground that the suit was prematurely brought was properly overruled.

4. Permission is given that the official copy of the exceptions assigning error upon the judgment sustaining the demurrer to the plea to the jurisdiction be filed as exceptions pendente lite.

Decided March 16, 1928.

Horton Brothers & Peek, Morris Machs, for plaintiff in error.

Madison Richardson, contra.

Judgment affirmed.

Stephens and Bell, JJ., eoneur.