author: Bboyles, C. J.

text:
    18295.
    Bacon, executor, v. Bacon.
    Appeal and Error, 3 C. J. p. 967, n. 40 New.
    Executors and Administrators, 24 C. J. p. 239, n. 9; p. 264, n. 39.
    Limitation of Actions, 37 C. J. p. 747, n. 85; p. 769, n. 70.
   Bboyles, C. J.

1. An application by a widow for a year’s support does hot necessarily have to be filed within twelve months after her husband’s death. See, in this connection, Reynolds v. Norvell, 129 Ga. 512 (59 S. E. 299); Riddle v. Shoupe, 147 Ga. 387 (94 S. E. 236).

2. Section 4362 of the Civil Code of 1910, providing that “All actions upon open- account, or for the breach of any contract not under the hand of the party sought to be charged, or upon any implied assumpsit or undertaking, shall be brought within four years after the right of action accrues,” does not apply to a widow’s application for a year’s support. The right to a year’s support is not an open account, nor is it based upon a contract, or an implied assumpsit or undertaking. Nor is it a debt of the estate, within the usual and ordinary meaning of the word “debt.” It is “a special provision allowed by law, in preference to any liens or debts held by creditors.” Barron v. Burney, 38 Ga. 264 (2); McNair v. Brown, 139 Ga. 71, 74 (76 S. E. 575). See also, in this connection, State v. Southwestern Railroad, 70 Ga. 13 (8), 33.

3. In the instant case the caveat and objection filed to the application for the year’s support and the return of the appraisers thereon failed to show that the application was filed too late under the law, or that the right to the year’s support was barred by the statute of limitations, and the court properly so held by its judgment in sustaining certain grounds of the demurrer interposed. No error appears in any of the other rulings upon the demurrer or the pleadings.

4. A ground of the motion for a new trial is as follows: “It is respectfully submitted that his Honor erred in overruling the motion of counsel for caveator, giving them the right to open and conclude in the argument. Caveator contends that this was a substantial right wliicli was denied by the presiding judge, and this was error on the part of the court.” This ground is obviously too incomplete within itself to raise any question for the consideration of the reviewing court. It fails to give any reason why counsel for the caveator was entitled to open and conclude the argument.

Decided July 26, 1927.

Appeal; from Cobb superior court—Judge J. S. Wood. May 14, 1927.

John E. Mozley, George & John L. Westmoreland, for plaintiff in error.

L. M. Blair, Morris, Hawkins & Wallace, contra.

5. The other special grounds of the motion for a new trial (some of which are not complete and understandable) show no material error.

6. A verdict in favor of the applicant for a year’s support was authorized; and this court, under all the facts of the case, can not hold that the amount of the verdict ($5550) was so large as to show gross mistake, or bias or prejudice on the part of the jury.

7. The refusal to grant a new trial was not error for any reason assigned.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
    18296.
    GOLDEN v. EASTERLING & SONS.
    1. Section 3296 of the Civil Code (1910.),' requiring the justice of the peace, or notary public, with whom an affidavit and mortgage are filed in a proceeding to foreclose a chattel mortgage, “to give notice to the mortgagor of said proceedings at the time of issuing execution,” is applicable to justice courts, and not to superior courts; and in the ease at bar the trial court correctly overruled the motion to dismiss the levy based upon said code section.
    2. The verdict is supported by the evidence.
    Chattel Mortgages, 11 C. J. p. 705, n. 54; p. 725, n. 45.
    Decided July 26, 1927.
    Mortgage foreclosure; from Liberty superior court—Judge Daniel. May 14, 1927.

      Edwin A. Cohen, for plaintiff in error.

      W. F. Slater, O. C. Darsey, contra.
   Luke, J.

Ed Golden gave his note for $170 principal to J. M. Easterling & Sons. The note stipulated for interest from date at 8 per cent, per annum, and was dated January 9, 1925, and it was secured by chattel mortgage of the same date. A part of the consideration of the mortgage was the right of Golden to have all the wood and logs which had been cut, and which should thereafter be cut by the plaintiffs on a certain right of way. The mortgage was foreclosed in the superior court of Liberty county, and the fi. fa. was levied on designated personalty. The defendant moved to dismiss the levy because “the notice prescribed by section 3396, Civil Code (1910) of Georgia, was not given.” The judgment was: “The above motion to dismiss is hereby overruled. It is admitted that notice of levy was not given.” Exceptions pendente lite were taken to this judgment. The defendant filed his defense, evidence was introduced by both. sides, and the jury found a verdict for the plaintiffs.

Was the motion to dismiss good? Section 3396 of the Civil Code (1910) reads: “It shall be the duty of the justice of the peace, or notary public, with whom the affidavit and mortgage are filed, to give notice to the mortgagor of said proceedings at the time of issuing execution.” This section is grouped in the code with other sections concerning procedure in justice’s courts; nor is there any such requirement as it contains as to notice in section 3386 of the same code, which controls chattel-mortgage foreclosures generally. However, the origin of section 3396 settles the issue adversely to the contention of the plaintiff in error. It is taken directly from section 3 of the act approved September 39, 1881 (Acts 1880-1, p. 136). By its terms this act applies strictly to justice’s courts. Clearly it has no- application to foreclosures in superior courts; and of course the judge correctly overruled the motion to dismiss.

Whether or not the verdict and judgment were excessive depends entirely upon the testimony of Earl H. Easterling, one of the plaintiffs. He swore that the plaintiffs took twelve cords of wood off the right of way and burned it, and that it was worth $3 per cord, or a total of $36. He testified also that the plaintiffs subsequently took six cords of wood from the right of way, and that it was worth $3 per cord, or a total of $18. Of course, the total worth of the wood for which the defendant should have had credit was $54. By deducting this last sum from the $170 sought to be recovered we get $116, the precise amount of principal stated in the verdict. No question is made as to the interest allowed, and, indeed, it is as well that there- was not, since it appears that it was under-figured. The plaintiff in error contends that the verdict was excessive, because at the very end of his testimony the witness swore: “The value of the wood taken by us was $55.” There is, of course, a discrepancy of just $1 in. the testimony of this witness. However, we think that the jury had the right to conclude, as they evidently did, that they should deduct from the sum sought to be recovered the correct total of $36 and $18, or $54, rather than $55, the result of an erroneous, calculation of the witness. The evidence sustains the verdict, which was not excessive, and the court correctly overruled the motion for a new trial, which was based upon the general grounds only.

Judgment affirmed.

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


author: Bloodworth, J.

text:
    18297.
    McKinney v. Chapman.
    Appeal and Error, 4 C. J. p. 850, n. 51; p. 859, n. 5.
    Decided July 26, 1927.
    Lien foreclosure;. from Fulton superior court—Judge Pomeroy. June 3, 1927.

      Neufville & Neufville, for plaintiff in error.

      John P. Haunson, contra.
   Bloodworth, J.

1. The amendment to the motion for a new trial shows no reason why the case should be tried again.

2. Juries are the final arbiters on all questions of fact. In this case the conflicting evidence was settled by the jury in favor of the plaintiff, and, no error of law having been committed on the trial, the verdict must stand.

Judgment affirmed.

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


text:
    18298.
    LAMBERT v. THE STATE.
    There being evidence to support the 'verdict, finding the accused guilty of having possession and control of intoxicating liquors, this court is bound to hold that the trial judge did not err in overruling the motion for a new trial, based solely upon the general grounds.
    Criminal Law, 17 C. J. p. 271, n. 41.
    Decided July 26, 1927.
    Possessing liquor; from city court of Albany—Judge Clayton Jones. June 8, 1927.

      Bennet & Peacock, for plaintiff in error.

      B. E. L. Spence Jr., solicitor, contra.
   Luke, J.

A. C. Lambert was convicted of a violation of the prohibition statute. The evidence upon which the verdict rested was' substantially as follows: Police officer Campbell testified, that he saw defendant on April 15, 1927; that he and officer Cowan were in the rear of a house on the east side of Jackson street in the City of Albany; that this street runs north and south; that there was an old toilet in the rear of the house, but witness did not believe it was being used, as it was full of paper; that just a few feet north of this toilet were other toilets that were being used; that on the east side of Jackson street there was a row of negro houses, which were close together; that the liquor found was in four one-gallon jugs, one of which had a small quantity of liquor out of it; that the jugs were found in said toilet; that witness and Cowan had been down at this place watching this toilet from about 8 o’clock in the morning until the defendant came there between 10:30 and 11 o’clock at night; that this toilet was from about four to six feet in depth from north to south, and faced north, the door being in the middle of it on the north side; that there was a fence running just a few feet north of the toilet, and so close to it that it was impossible to open the toilet door and stand inside in front of tire door, and that to open the door one would have to get on one side, because the fence was so close to the toilet; that he was standing near the southeast corner of the toilet when the defendant came up east of the toilet door, opened it, and stooped down and picked up one of the jugs of whisky; that witness flashed his light and the defendant dropped the jug; that the defendant had in his right hip-pocket a milk bottle; and that at about the time the light was flashed on the defendant he put his hand back towards his pocket and immediately dropped the' liquor. The .defendant stated that he did not know that the whisky was in the toilet; that he knew nothing about it; that he was there solely for the purpose of using the toilet; that he did not put his hand on his hip, as stated by the State’s witness, and that he did not pick up the jug of liquor.

Do these facts make a ease? We think so. At least we can not say there was no evidence to authorize the defendant’s conviction, which has the approval of the trial judge.

Judgment affirmed.

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


text:
    18283.
    Michael v. The State.
    Criminal Law, .17 C. J. p. 255, n. 53.
    Decided July 27, 1927.
    Possessing liquor; from Whitfield superior court—Judge Pittman. May 28, 1927.

      T. G. Read, for plaintiff in error.

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

The evidence was sufficient, io authorize the defendant’s conviction, and the special grounds of the motion for a new trial show no reason why the case should be tried again.

Judgment affirmed.

Broyles, O. J., and Bloodioorlh, J., concur.


author: Broyles, C. J.

text:
    18292.
    LUMBERMAN’S COMPANY v. SEABOARD AIRLINE RAILWAY COMPANY.
    The specification of a “minimum weight” per carload by the Georgia public-service commission in fixing a stated sum as the rate per carload for transportation of lumber does not entitle the carrier to collect more than that sum on a carload of more than that weight. The purpose in specifying the minimum weight is to require that the car shall have a carrying capacity of at least that weight before the carrier shall be entitled to charge the sum fixed as the rate per car- • load.
    Under the law and the facts of this case a verdict against the railway company for the amount sued-for as overcharge and the penalty prescribed by section 2770 of the Civil Code (1910) was demanded.
    The certiorari should have been sustained, and final judgment rendered in favor of the plaintiff for the full amount sued for.
    Carriers, lo C. J. p. 451, n. 92 New.
    Decided July 27, 1927.
    Certiorari; from Fulton superior court—Judge Humphries. June 8, 1927.
    Application for certiorari was made to the Supreme Court. Lumberman’s Company brought suit in the municipal court of Atlanta to recover alleged overcharges collected .by the defendant railway company as freight on eight carloads of lumber shipped from Dacula, Georgia, to the plaintiff (the owner of the shipments) at Atlanta, Georgia. The plaintiff alleged, that the charges, which amounted to $314.06, were in excess of the maximum rate prescribed by the Georgia public-service commission and in excess of the rates published in the defendant’s local tariffs in effect at the time the shipments moved; that the only proper published and legal rate that could have been applied and collected upon the shipments was $13.50 per car, which was the maximum rate prescribed by the Georgia public-service commission; that the defendant is indebted to the plaintiff in the amount of $185.81, the difference between the charges the defendant was legally entitled to collect and the amount it actually collected; that a demand in writing for the return of the overcharges was made upon the defendant in August, 1926, and was refused on September 16, 1926; that under the law, by virtue of that refusal, the defendant became liable to the plaintiff in an amount double the amount of the overcharges collected on the shipments; and the plaintiff prayed judgment for $371.62, with interest thereon at the rate of 7 per cent, per annum. Upon the trial there was no dispute as to the facts of the case, the only issue involved being one of law. Judgment was rendered by the trial court in favor of the defendant, and finally, by certiorari, the case reached the superior court; the certiorari was overruled; and the plaintiff excepted.

      Watkins, Asbill & Walkins, for plaintiff.

      Brandon & Eynds, Randolph, Parker & For Ison, for defendant.
   Broyles, C. J.

(After stating the foregoing facts.) It appears from the record that at the time the shipments in question moved, there were three customary units of shipment rates prescribed by the Georgia public-service commission, to wit, “per 100 pounds,” “per ton,” and “per carload.” These units of rates were also prescribed by the interstate commerce commission, and each unit is distinct and different from the other units. It also appears that in connection with its standard tariff the Georgia public-service commission has classified _ various articles subject to shipment, the classes ranging from 1 to 6 and from A to R. The commission has prescribed rates “per hundred pounds” on carload shipments of articles placed in classes 1 to 6, and in classes A, B, C, D, E, G, H, J, K, and R, and rates “per ton” on articles in classes L and M; but on articles in classes N, O, and P the commission has prescribed rates “per carload,” and not “carload rates per hundred pounds.” Lumber is listed by the commission in class P as follows: “Lumber, dressed or rough, C. L. [meaning carload], minimum weight 24,000 pounds. Class P.” It also appears from the record that the unit of rate on lumber, published in the defendant’s local tariff, was “per car.” In its standard tariff the commission fixed the maximum rate on carload shipments-of lumber for a haul of 4-0 miles (the distance from Dacula to Atlanta) as follows: “Per carload. Class P. $13.50.” The same rate per car of $13.50 upon carload shipments of lumber for a haul of 40 ipiles was published in the local tariff of the defendant. No provision for any charge upon excess weight of lumber above the minimum weight of 24,000 pounds ivas made in the defendant’s local tariff, although such a provision was made therein in regard to various other commodities. There is likewise no provision in the rates prescribed by the Georgia commission for any excess 'charges upon lumber.. It is contended, however, by counsel for the defendant that under “Freight Rule 19” of the commission (which'has been in force since 1910) such a charge is authorized and lawful. That rule, in part, is as follows (the other parts being immaterial in this ease) : “Where the weight of a shipment of any class of freight exceeds the specified carload weight for such freight, charges for the transportation thereof shall be based upon the carload rate per hundred pounds applied to the actual weight of the shipment without reference to the number of cars required in transportation.” The defendant’s contention is that this rule gives it authority to charge for all weights of lumber loaded into a car above the minimum weight of 24,000 pounds at the rate in cents per 100 pounds derived by reducing the per car rate to a rate in cents per 100 pounds. We can not agree with this contention. No “specified carload weight” is prescribed by the commission under the classification rating on lumber, and no “carload rate per hundred pounds” on lumber was published in the local tariff of the defendant. We agree with counsel for' the plaintiff that “the words ‘minimum weight 24,000 pounds’ can not be interpreted to mean the maximum or most weight that the shipper is entitled to have carried for $13.50 per car, and that the words ‘minimum weight 24,000 pounds’ in the classification rating on lumber are solely to insure the shipper getting a car that will load at least the am mint of the minimum before the carrier shall be entitled to charge him the per car rate of $13.50.” The record shows that for several years previous to 1910 Rule 19 read ■ as follows: “Where the weight of a shipment of any class of freight exceeds the weight specified as the minimum carload of such class (italics ours), a proportionately increased freight charge may be collected.” Under the particular wording there used, the defendant would probably have had a good defense to this action, but in the meantime the wording of the rule had been vitally changed, and the present rule gives no authority for the overcharges collected from the plaintiff. See, in this connection, the decision of the interstate commerce commission in Brooks-Scanlon Corporation v. A. C. L. Railroad Co., 113 I. C. C. 237, where substantially the same question was involved and resolved against the carrier.

Several other freight rules of the Georgia commission are relied on by the defendant, but none of them has any application to the instant ease.

We think it is clearly apparent that under a rate “per car,” or “per carload,” the freight charges are based upon the use of the car, and not upon the weight of the commodities loaded in the car. As was said by counsel for the plaintiff in error in their brief: “Per car rates are customary. The reason is that it costs the carriers very little more to move a ear loaded with say 60,000 pounds of lumber than to move a car of 24,000 pounds. From its inception the interstate commerce commission has recognized the right of carriers to prescribe rates per car. In Leonard v. C. & A. R. Co., 2 I. C. C. 599, the first headnote reads in part: ‘A practice had existed on the part of certain carriers of live cattle to make a carload rate irrespective of weight, leaving the shipper to load into the car as many cattle as he pleased and was able to put into it.5 In Georgia Peach Growers Association v. A. C. L. R. Co., 10 I. C. C. 255, the commission said, at page 263: ‘The loadings are determined by weights estimated per crate and no extra charge is made for loading in excess of the prescribed minimum.5 And at page 278: ‘It should be borne in mind that all weight above the minimum is carried free by the roads.5 55 The “per car” rate has been established as the basis for freight charges on lumber by the Georgia commission, and it can be changed by that body only, and by it only after notice and a hearing. Until the “per car” rate on lumber is changed by the commission, the shipper can load any amount of lumber in a car, and the carrier can make no extra charge for the weight of the shipment in excess of the prescribed minimum weight—24,000 pounds.

In our opinion, under the facts of the case and the law relating thereto, a verdict in favor of the plaintiff for $185.81 (the amount of the overcharges collected, plus $185.81 (the amount of the penalty prescribed bj section 2770 of the Civil Code of 1910), was demanded, and the judge of the superior court erred in overruling the certiorari, and erred in not rendering final judgment in favor of the plaintiff for the full amount sued for.

Judgment reversed.

Luke, J., concurs. Bloodworth, J., dissents.


author: Bloodworth; J.

text:
    17543.
    MORELAND v. THE STATE.
    The indictment in this case, which charged two persons with murder, alleged to have been committed with an automobile driven and operated by them, was not subject to deimn-rer on the ground that it did not show which one of them was actually driving, or that there was no allegation of conspiracy or of joint action or common intent to violate the law.
    The evidence on the trial of the owner of the automobile, who was being driven therein by his chauffeur, the other defendant, when the killing-occurred, authorized the verdict of guilty of involuntary manslaughter in the commission of an unlawful act.
    Homicide, 30 C. J. p. 317, n. 71.
    Decided July 28, 1927.
    Rehearing denied August 12, 1927.
    Involuntary manslaughter; from Cobb superior court—Judge Blair. May 22, 1926.
    Application for certiorari was denied-by the Supreme Court.

      Fred Morris, L. W. Gamp, Branch & Howard, for plaintiff in error,
    cite.d, on the general grounds of the motion for a new trial, Fudge v. State, 148 Ga. 149; Walker v. State, 118 Ga. 10; People v. Scanlon, 132 N. Y. App. Div. 528 (117 N. Y. Supp. 57); Commonwealth v. Druschell, 66 Pitts. Leg. Jour. (Pa.) 520.

      George B. Anderson, solicitor-general, contra.
   Bloodworth; J.

The demurrer to the indictment was properly overruled.

2. To a question certified to it by this court the Supreme Court answered as follows: “Two men, on a rainy day, were traveling in an automobile on a public highway in this State. One was the owner of the car, and the other was the owner’s chauffeur, who was driving. While the automobile was moving .at the rate of fifty miles an hour, and as it approached a sharp curve on the highway and on the wrong side of the highway, at the same unlawful rate of speed, it collided with another automobile which was being driven in the opposite direction, and the collision caused the death of a woman who was riding in the latter car. At the scene of the collision, and almost immediately thereafter, the chauffeur stated that he lost control of the car when he attempted to wipe the rain off the windshield. The owner and the chauffeur were both indicted for murder, and the owner was put upon trial and convicted of involuntary manslaughter in the commission of an unlawful act; the chauffeur not being apprehended. The evidence authorized a finding that the woman was killed by the chauffeur, the operator of the automobile, without intention to do so, but in the commission of an unlawful act which in its consequences did not naturally tend to destroy a human being. There was no evidence authorizing a finding that the owner was operating the automobile at any time, or.that he directed the chauffeur in the operation, or aided, abetted, or concurred in the unlawful manner in which the car was operated, except the following facts: The owner was riding in the car while his chauffeur was driving it in an unlawful manner, as stated. About five minutes after the collision the owner said to the chauffeur, ‘We must catch the train and get away from here;’ and the chauffeur soon afterwards left the scene and has never been apprehended. About an hour after the collision the owner appeared at 'the railroad office in Marietta and bought two tickets to Chattanooga. Another man was with him. The next train left for Chattanooga about fifteen minutes afterwards. About three hours after this train left Marietta, the owner was arrested in a taxicab near Marietta, and while being driven towards that city. Held, that a verdict finding the owner guilty. of involuntary manslaughter in the commission of an unlawful act was authorized as a matter of law.” 164 Ga. 467 (139 S. E. 77).

3. As far as they properly present any questions for determination by this court which are not settled by the foregoing answer to the question certified to the Supreme Court, there is no merit in any of the other assignments of error.

Judgment affirmed.

Broyles, G. J., and Buhe, J., concur.


text:
    18127.
    DURDEN v. YOUMANS et al.

    Two or more sureties who have paid the debt of their insolvent principal may jointly sue a cosurety for contribution, even where their action is based upon their right to contribution predicated upon the implied promise springing from the payment of the debt alone, and is not based upon notes paid off and transferred to them, where the plaintiff sureties jointly paid the debt, although it was paid by their individual funds.
    Principal and Surety, 32 Cyc. p. 299, n. 31.
    Decided July 28, 1927.
    Complaint; from Jeff Davis superior court—Judge J. H. Thomas. April 12, 1927.
    Lamb, after executing notes which were indorsed by five of his friends, became insolvent and filed a voluntary petition in bankruptcy. Three of the indorsers paid the debt of their principal, had the notes transferred to them, and sued Durden, another indorser, who is also the plaintiff in error, for one fifth of the ■amount so paid. One of the plaintiffs having died, the suit proceeded, under proper order, in favor of the other two. Paragraph 9 of the petition is as follows: “Petitioners show that the liability of defendant is of equal dignity to the liability of each of petitioners and of W. N. Durden, and that each of petitioners and the said J. L. Durden are liable for the payment of one fifth of the amounts due on said note.” A demurrer was filed, one of the grounds of which is as follows: “Defendant demurs specially to the ninth paragraph of said petition and moves the court to strike the same, because the facts therein alleged do not authorize a recovery in the sum and manner here sought to be recovered, for that there is not in said paragraph or elsewhere in said petition any allegation that the petitioners acted jointly or that they used money belonging jointly to them in making the payment of the money due on the alleged note; that thereby they fail to show any reason for maintaining this suit against this defendant.” The demurrer was overruled and the ease proceeded to trial. The evidence showed that Lamb was insolvent, and that the three indorsers who brought the suit each contributed from his own money one third of the amount to the fund from which the debt was paid. The defendant moved to nonsuit the plaintiffs, “because the evidence showed that the payment made by the petitioners was made by them.as individuals, hot jointly or with joint funds, and that they had no right to proceed jointly on an obligation arising from money paid, there being no attempt to sue on the original notes.” This motion was overruled, and error is- assigned on the overruling of the demurrer, on the overruling of the motion for a nonsuit, and on the overruling of the motion for a new trial.

      Netoton Gaskins, for plaintiff in error.

      Gordon Knox, I. W. Rountree, contra.
   Bloodworth, J.

(After stating the foregoing facts.) The real and only point in the case, the point raised by all the assignments of error, is whether or not a joint suit can be maintained by two or more sureties who have paid in full the debt of the principal who is insolvent, against another of the sureties for his proportionate part of the debt, when their right to contribution is predicated upon an implied promise springing from the payment of the debt, and suit is not brought on the notes that they liad paid off and had transferred to them. It is well settled in this State that an accommodation indorser is to be considered as a mere surety. Civil Code (19‘10), § 3541. The original petition presents a case of the payment of the debt by three of the sureties and a claim by them jointly for contribution from another indorser for his pro rata part of the debt. That the cosurety against whom suit is brought is liable for one fifth of the debt can not be questioned. That each of the, plaintiffs is ’ entitled to recover the proportionate part due him by the defendant is also beyond dispute. Civil Code (1910), § 3564. How are the plaintiffs -to enforce their right ? Two propositions seem settled by the decisions of our courts: First, that a joint suit could have been brought by the plaintiffs had they based their right to recover upon the notes that they paid and which were transferred to them. Train v. Emerson, 141 Ga. 95 (80 S. E. 554, 49 L. R. A. (N. S.) 950). Indeed, this is conceded by counsel for the plaintiff in error. Second, that a joint action can be maintained by sureties who have paid jointly the debt. Counsel for the plaintiff in error quotes the following from 32 Cyc. 299 (VI) : “Sureties who have made payment jointly-may unite in an action against cosureties for contribution, but sureties who have made payment separately can not so unite- at law;” but the remaining section of this sentence is as follows: “In equity two or more sureties may unite whether or not they paid jointly.” In Young v. Lyons, 8 Gill (Md.), 162, the 1st and 2d headnotes are as follows: “Where there are several sureties, and any of them become insolvent, those who pay the whole debt, can compel contribution, in equity, from the remaining solvent sureties, towards the entire debt paid. Where the relief sought is common to all the plaintiffs, and constitutes but one subject-matter of complaint against the defendant, the objection of multifariousness will not hold.” In the opinion (p. 167) the court said: “The case here is predicated upon the privity subsisting between all the sureties in one bond, and the money raised by the live complainants, for the payment of it, was, by every reasonable and fair construction, a joint fund. Eacli having advanced $10,000, amounting in the whole to $50,000, is it not obvious that they must have united together, and agreed, in equal proportions among themselves, to liquidate the precise amount of the bond, reserving against the recusant sureties their claim for contribution? The bond was'for a specific sum, and the several amounts contributed by them, made but one fund, which, by the joint action of the parties, satisfied the bond. They now claim that the defendant shall pay his proportion of this sum as the sixth solvent surety, to be afterwards distributed to them according to the respective amount which each had contributed towards the liquidation of the bond. Such, whatever its form, would be the character of the decree in the premises. Suppose the sums advanced by each had been unequal, yet altogether constituting the whole amount, would it not be competent for such of them as had paid more than their just proportion to bring all the solvent parties into chancery, for an adjustment of the account, and an equitable contribution among them? If so, how can it alter or affect the principle of adjustment among these sureties, that the several contributions by the complainants, were equal in amount on the part of each and all of them? It did not the less constitute one fund. All the sureties were jointly bound, and five of them jointly paid the bond. Each was also separately bound for the whole, and the present complainants having paid, between them, the precise amount of the bond, must necessarily have concurred in the arrangement, and constituted a fund to which they are now entitled to call upon the others to contribute, to their relief.” See Dussol v. Bruguiere, 50 Cal. 456; Adams v. DeFrehn, 27 Penn. Sup. Ct. Rep. 184. The second headnote in Julufka v. Matejek, 22 Tex. Civ. App. 384 (55 S. E. 395), is as follows: “In an action against sureties for contribution, all those who have not paid their proportionate part are properly joined as defendants to avoid multiplicity of suits.” The second headnote in Hand v. Dexter, 41 Ga. 454, is as follows: “Where complainants claim by the same right, charge a common wrong and pray a common redress, the bill is not multifarious.”

In People’s National Bank v. Cleveland, 117 Ga. 916 (2) (44 S. E. 24), Justice Eish said: “The rule is well established that where there is one connected interest, centering in the point in issue, or one common point of litigation, so that the joinder tends to prevent multiplicity of suits, unconnected parties may join in an action.” In the present case there is one common point of litigation, the right of each plaintiff to recover from the defendant. This is the same “common point” that the plaintiffs would have were they basing their suit on the notes which were paid off and which had been transferred to them. What difference should it make if the right of the plaintiffs is based upon their right to contribution predicated upon an implied promise springing from the payment alone rather than upon the transferred notes? And what difference should it make whether the three who paid the debt each furnished his pro rata part from his individual funds, the three paying the whole debt in one transaction and having the notes transferred to them, or that it was paid with money belonging to them jointly? The sureties who paid the debt were each bound therefor. Even though each furnished his pro rata part of it from his individual funds, did it not then become one fund, a joint fund? In Hull v. Myers, 90 Ga. 686 (5) (16 S. E. 656), Chief Justice Bleckley said: “Putting subrogation out of view, the right of each paying indorser to sue severally for his own pro rata share of the contribution which the defendant ought to make towards bearing the common burden, is not questionable upon principle. Neither is it upon authority so far as we know. . . Perhaps all might sue jointly if they thought proper.” While the statement that “perhaps all might sue jointly” was obiter, it showed the bent of his mind, and it is no violent presumption for us to reach the conclusion that if he were determining the question that is now before us he would decide that there could be a joint suit in this case.

Section 5406 of the Civil Code of 1910 is as follows: “The superior courts of this State, on the trial of any civil case, shall give effect to all the rights of the parties, legal or equitable, or both, and apply on such trial remedies or relief, legal or equitable, or both, in favor of either party, such as the nature of the case may allow or require.” Referring to this section and to section 5407, the Supreme Court in Douglas v. Jenkins, 146 Ga. 344 (91 S. E. 50, Ann. Cas. 1918C, 322), said: “These acts have been construed with the utmost liberality, to the end that all the remedies and relief to which the respective parties in any civil cause might be entitled should be applied and accorded in one action.” In referring to sections 3567 and 3568 of said code, the Supreme Court, in Train v. Emerson, supra, said: “Whether the code sections serve to convert the right of substitution from an equitable to a legal right becomes quite immaterial since the enactment of our uniform procedure act, which permits the enforcement of equitable and legal rights in the same action in a court having jurisdiction to administer both.” In Georgia Iron Co. v. Etowah Iron Co., 104 Ga. 399 (30 S. E. 878), Justice Cobb said: “In 1887 the General Assembly passed what is known as the 'uniform procedure act.’ Acts 1887, p. 64. By that act the court of equity was abolished, and the superior court now has full power to grant complete relief to all suitors, applying in aid thereof either legal or equitable remedies, or both. All of the plaintiff’s rights can now be determined in one action. In the trial of any case before it, the superior court acts either as a court of law or of equity or of both, and uses all the machinery appropriate to the case to which the respective parties are entitled. . . The spirit of the act of 1887 is, that all questions necessary to be decided shall be determined in one action, and the parties therein given such relief, and allowed to invoke such remedies, either legal or equitable, as they are entitled to.”

Under the principles announced in the foregoing cases and the facts of the case under consideration, we think that the court was correct in all of its rulings to which exceptions were taken. The policy of the law is to avoid a multiplicity of suits.

Judgment affirmed.

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


text:
    18147.
    Newark Fire Insurance Company v. Reese.
    Eire Insurance, 26 O. J. p. 578, n. 14, 22.
    New Trial, 29 Oye. p. 918, n. 5.
    Decided July 28, 1927.
    Rehearing denied August 12, 1927.
    Complaint on fire policy; from city court of Newnan—Judge W. L. Stallings. April 28, 1927.

      Spalding, MacHougald & Sibley, Hall & Jones, for plaintiff in error.

      Stanford Arnold, contra.
   Bloodworth, J.

1. In view of the amendment to the petition, for no reason alleged does the excerpt from the charge of the court, of which complaint is made in the first ground of the amendment to the motion for a new trial, require a rehearing of the case.

2. The second special ground of the motion alleges error “because the principal sum sued for in this case was $600, the amount named in the . policy, while the verdict . . was. for only the principal sum of $525, which was substantially less than the amount claimed and was' equivalent to finding that movant was justified in resisting the claim as sued for.” This ground is without merit. The suit was for $600, the amount of a policy of fire insurance on an automobile. It was agreed that the salvage value of the automobile was $75. The verdict was for $525. Under the ruling in Central Manufacturers Mutual Ins. Co. v. Graham, 24 Ga. App. 199 (4) (99 S. E. 434), even though the verdict was “substantially less than the amount claimed,” this would not preclude the insured from recovering damages and attorney’s fees, since the insurance company denied any liability whatsoever.

3. The ground of the motion based on newly discovered evidence is without merit. The alleged newly discovered evidence was not discovered for more than five years after the automobile was burned, and related to an alleged conversation between the plaintiff and a person who had been dead more than five years before the affidavits relative to this testimony were made. The only effect of the alleged newly discovered evidence would be to impeach the plaintiff. “Though the witness sought to be impeached by newly discovered evidence was the only witness against the prisoner upon a vital point in the case, if the sole effect of the evidence would be to impeach the witness a new trial will not be granted. Arwood v. State, 59 Ga. 391 (1); Levining v. State, 13 Ga. 513 (1); Wright v. State, 34 Ga. 110 (2); Jackson v. State, 93 Ga. 190 (18 S. E. 401); Haynes v. State, 18 Ga. App. 741 (3), 742, 743 (90 S. E. 485), and eases cited.” Key v. State, 21 Ga. App. 795 (95 S. E. 269).

Judgment affirmed.

Broyles, O. J., and Luhe, J., concur.


author: Luke, J. Broyles, C. J.,

text:
    18228.
    GRIFFIN v. THE STATE.
    1. The crime of assault with intent to rape may be committed by two persons, the one committing the physical offense by unlawfully laying hands upon and otherwise undertaking to have sexual intercourse with the female forcibly and against her will, while the other may be acting jointly and with a common purpose.
    2. A principal in the second degree is one who is actually or constructively present when the crime is committed.
    3. In order to convict one as a principal in the second degree, he must not only be present when the crime is committed, but must aid and abet the actual perpetrator of the crime.

      (a) One who is present when a crime is committed, but does not assist in its commission nor share in the criminal intent, can not be convicted as a principal in the second degree.
    4. The evidence in this case on the question of joint enterprise upon the part of the two defendants who were jointly indicted for the offense of assault with intent to rape was circumstantial, and, though somewhat consistent with the guilt of the defendant as a principal in the second degree, was not inconsistent with every other rational hypothesis, and, being insufficient to show guilt beyond a reasonable doubt, the judgment overruling the motion for a new trial must be reversed. Broyles, O. J., dissents.
    Criminal Law, 16 C. J. p. 125, n. 44; p. 126, n. 51; p. 128, n. 63; p. 130, n. 87.
    Rape, 33 Cyc. p. 1437, n. 73; p. 1494, n. 76.
    Decided July 28, 1927.
    Assault with intent to rape; from Jenkins superior court— Judge Strange. May 5, 1927.

      James A. Dixon, Lewis & Leivis, for plaintiff in error.

      John 0. Hollingsworth, solicitor-general, William Woodrum, B. Lee Moore, contra.
   Luke, J.

Hersey and Griffin were jointly indicted and separately tried for the offense of assault with intent to rape, alleged to have been committed on the person of Louise Johnston. The jury returned a verdict of guilty as to Griffin. His bill of exceptions assigns error upon the refusal of his motion for a new trial.

The evidence submitted at the trial, so far as necessary for consideration here, was as follows: Louise Johnston, the alleged injured female, testified substantially as follows: I am twenty years of age, live in Millen, Georgia, and know Griffin and Hersey. I saw Griffin in January of this year. He came to Millen and fixed a date for himself with Miss Stephens for Monday evening. Miss Stephens, whose mother was in charge of the telephone exchange, and I, worked together in the exchange. Miss Stephens arranged a date for me,with Mr. Hersey, whom I had known for several years and in whose company I had been several times. I went over to the telephone exchange, which is the home of Miss Stephens, and at about 8 o’clock Hersey came to see me and Griffin came to see Miss Stephens. We talked for a few minutes and they suggested that we go to the picture show. I agreed to go on consideration that we not stay long, and we all came down, and, inasmuch as it was not far, we wished'to walk to the show, but they suggested that we ride. We got in the car. Mr. Griffin, Miss Stephens, and myself sat on the seat of the ear, and Iiersey sat on the car door. Griffin drove the car on down the street, and I said, “This is not the way to the picture show,” and he said, “Let’s go by Mary Taylor’s house.” I said that the clock had struck eight and that the show started at eight, and when we went by Mary Taylor’s house no one was there, and when he went on and did not stop, I began to protest and tried to scream, and Mr. Hersey, who was sitting on the door next to me, put his hand over my mouth and said, “Sit down and don’t cut up so; don’t be silly, we are just going to ride’ a little piece and come back to the picture show.” Griffin drove on out about two miles and said, “We will turn around here,” and he drove up to a church, stopped the car, and turned the lights out; and I said, “Turn on -the lights,” and he turned on the dimmers; and I said, “I am going home, and I am going to walk home,” and Mr. Hersey said, “I don’t know how you are going to walk, because I am not going to let you.” Mr. Hersey told me to come around out of the car with him, and I told him I would die before I would, and he caught me by my right arm and right leg and pulled me out of the car, and at about twenty feet from the car he tripped me up and threw me on the ground. Mr. Hersey was drinking, for I smelled it on his breath,'but I don’t know whether Mr. Griffin was drinking or not. I first discovered Hersey was drinking when, while riding, his face got close to mine and I smelled the whisky on his breath. While we were driving I did not continue to make an outcry, but kept on begging to let’s go back; and Mr. Hersey said we would turn around at the very next place. Mr. Griffin did not say anything at that time. I guess we went about two miles, and no ono said “Let’s turn,” but Griffin turned out to the church and stopped the ear. When he stopped the car and turned the lights out, I told him to turn the lights on, and he (Griffin) said, “Oh, all right, I will turn the dimmers on.” Mr. Hersey then began arguing with me about getting out of the car. When I would not get out, Mr. Hersey pulled me out. I was crying and begging him to let me alone, when he got around the corner of the church and tripped me and threw me down on the ground. He held my left leg down with one of his knees and held his hand over my mouth, and held my head down so hard that he rubbed it in the dirt. He told me that if I kept ñghting ho would kill me. He pulled up my clothes and tried to do what he went there to do, I guess. I kept ñghting, and every time his hand would slip off of my mouth I would scream, and every time I would scream he would talk about killing me. Finally my underclothing saved me. The position we were in was that I was flat on the ground and Mr. Hersey was across on top. While I was pleading with Mr. Hersey to let me get up and go, I called Mr. Griffin and he came; and Mr. Hersey said to him, “If you come a step further I will kill you,” and Mr. Griffin turned and went back to the car. When I got loose from Mr. Hersey I ran to the car where Mr. Griffin and Miss Stephens were, and I wanted Mr. Griffin to carry me back to town before Mr. Hersey could get there, but he didn’t. Mr. Horsey came on to the car, and I told him I was going to toll my brother about it and he would kill-him, and Mr. Hersey said he could shoot as straight as anybody, and he took his pistol and put it in his right hip-pocket, and he took a jar from somewhere in the back of. the automobile and took two or^ three drinks of whisky and offered Mr. Griffin some, but he would not take it. We went on back to town, and on the way in Mr. Griffin said nothing. I was crying, and Hersey was saying that if I did not hush he would not take me back, but would kill me. Mr. Griffin was driving, Miss Stephens was sitting next to him, I was sitting next to her, and'Mr. Hersey stood on the running-board. When we got to Miss Stephens’ I’ said, “I am going home,” and Mr. Hersey said, “If you do, I am going to kill you. Go on up stairs, for I have something in my pocket to make you go.” Mr. Griffin did not say anything. We went on up stairs where Mrs. Stephens and a child were, and Mr. Griffin, Miss Stephens, and I sat down for a few minutes; and Mr. Hersey started playing marbles on the floor with Mrs. Stephens’ little daughter. When I saw my chance to get away I went home, and when I got there I told my sister about it. There were injuries on my body—scratches on my left arm and bruises on my left leg between my knee and hip. I have known Mr. Hersey about four years, I have been in his company several times. All this happened in January, 1927, in Jenkins county, Georgia.

Lois Stephens, for the State, testified substantially as follows: I am eighteen years old, and Miss Johnston and myself worked at the telephone exchange, where my mother is in charge, and we live in the telephone-exchange building. Mr. Griffin came to town and called me up and made a date with me, and wanted to know if he could bring Mr. Hersey with him, and I asked Louise Johnston if she would give Hersey a date, and she said she would, and would go to the show. Mr. Griffin and Mr. Hersey came to the exchange at about 7:30 in the evening, and Miss Johnston soon came. We stayed there in the room together for about ten minutes, and when we started off they asked us to go to the picture show with them. We consented, and when'we got down on the street, they suggested that we ride. Mr. Griffin suggested riding, and Mr. Hersey said he would do anything the crowfd did. We said there was no use to ride, as the show was only half a block away. . Then they said they did not want to leave the ear, as in the back seat there were suit-cases and tires. Mr. Griffin got on the front seat of the car and I got next to him, and Miss Johnston next to me, and Mr. Hersey sat on the door of the car. The car was headed away from the show, and we drove on around the block, and Mr. Griffin said we would go by May Taylor’s house, and when we saw no one he drove on out. All the time we kept begging them to turn round, but he turned on another road. Miss Johnston was crying and begging them to turn around. Mr. Griffin turned in and stopped the car in front of a church, and turned off the lights. Miss Johnston asked him what he meant by turriing the lights off, and he said he would put the dimmers on. Miss Johnston began screaming. Mr. Hersey came around to where she was and asked her to get out, and she said she wasn’t going to' do it. Mr. Hersey then dragged her out. She was trying to fight him back. He was -tussling with her at the side of the car, and he finally sueceeded in getting her back of the car and back of the church. When she got back of the church she was screaming and calling me, and the reason I did not go, Mr. Griffin was holding my hands; and when he did not turn me aloose, I asked him, if his sister was being done like that, would he sit there and see all that going on and not help. He then said he would go, and he went, but not clean to where they were; and Mr. Hersey said something to him, but I could not hear what it was; and he came back, and in a few minutes Miss Johnston came to the car and got in it beside me and was crying. I asked her what was the matter, and she said that it was the most outrageous thing that had ever happened to her. Mr. Hersey came and took a jar out of the back of the car and took a big drink, and asked Mr. Griffin to have some, but he didn’t take it. Hersey put his pistol in his pocket, and we kept telling him to get in the car. He finally got in, and we came on to my house, where we stayed about ten minutes. Mr. Griffin was not drinking, nor. did I smell any whisky on his breath. I had known him for some time, and he had never said or done anything objectionable on.any of his visits to me.—The State offered other evidence, locating distance, place, etc.

The defendant Griffin made substantially the following statement: I live in Waynesboro, Ga., and have lived there for ten years. In January I heard about the good jobs down in Florida and went down there, but could not do as well as I expected. I came back, and on the way home in January I passed through Millen, and not having seen any one that I knew for a month, and having known Miss Stephens, and having .called on her before, I phoned her and asked for a date. She gave me the date. Knowing that Hersey knew Louise Johnston, it was suggested that she get a date with her for him, and she did, and said for us to come around about 8 o’clock. When we got to Miss Stephens’ home Miss Johnston was not there, but came soon. We talked about going to the picture and going for a ride. I had been to ride with Miss Stephens before, and I did not see any harm in our going. We rode by May Taylor’s house, but I saw no one there and did not stop. I drove on out the road a mile or two, and Miss Johnston objected to Hersey putting his hand on her shoulder. As I came to the church, Hersey, or Miss Johnston, said 'stop. and Hersey asked Miss Johnston to get out, and she objected, and he kind of pulled her out, and they went on around the church about sixty or seventy feet from the car where Miss Stephens and I were sitting. I heard them arguing, but did not know that anything improper was taking place. I just thought she was mad with Hersey, and Miss Stephens said that I had better call him to come and go. I said, “Wait a minute, and they will come,” and she said, “If you don’t go, I will go myself,” and she made a move to go herself, so. I took her by the hands and put her in the seat. I did not mean any offense. Then I went myself. I did not see why she should go. I walked behind the car and called Hersey and told him tó come on and behave himself. I came on to the car, and in a minute or so Miss Johnston came to the car, and’she was mad and crying, and when Hersey came to get on the side of the car, Miss Johnston said, “I am going to tell my brother on you.” He said, “Tell anybody you want to.” He said to her in a kind of a joking way that he could shoot as straight as anybody. We went on back to Miss Stephens’ home, and, after staying there for a while, Miss Johnston went to her home, and I remained with Miss Stephens for a while. Soon some one came to the door, and said my friend was out there and drinking, and that I had better get him out of town. I did not see all that happened at the church. I went and got Hersey, and he seemed to have had more, to drink. I did not know that Hersey had outraged Miss Johnston until I was arrested' at Waynesboro. I know that I did not do anything wrong, and I did not know that Hersey was doing what he did. I did not frame up to take these girls out and have Hersey do what he did. I have known Miss Stephens for years, and I have always conducted myself right with her. I know that Hersey did hot do right, but I had nothing to do with it.

The defendant’s good character was testified to by seven men of unquestioned character and integrity from his home town.

Does the evidence justify the conviction of Griffin? We think not. It is contended that the fact that Griffin drove the car and continued to drive over Miss Johnston’s protest, and then stopped where he did and sat there while Hersey was pulling or dragging Miss Johnston, over her protest, to the rear of the car, was sufficient to justify the conclusion that Griffin was engaged in a joint enterprise with Hersey to have sexual intercourse with Miss Johnston forcibly and against her will. We can not escape that feeling of resentment and indignation engendered by the detailing of the facts touching the conduct of Hersey. It is very easy, with the public mind excited, as it must have been, for that calm and judicial temperament which should guide the jury to giye way to the slightest circumstance from which guilt might be suggested. It is settled that to constitute one a principal in the second degree, he must not only be present when the crime is committed, but must aid and abet the actual perpetrator of the crime. One who is present when a crime is committed, but neither assists in its commission nor shares in the criminal intent of its perpetrator, can not be convicted as a principal in the second degree. Under no view of the evidence can we say that beyond a reasonable doubt Griffin conspired with, acted jointly with, abetted, or shared in the criminal intent of the actual perpetrator of the offense. Griffin’ was lacking in discretion and chivalry, but every reasonable hypothesis save that of his guilt in this case is not excluded. For the reason that the evidence did not authorize the verdict’ of guilty as to Griffin, it was error for the court to overrule his motion for a new trial. Judgment reversed.

Bloodworlh, J., concurs.

Broyles, C. J.,

dissenting. Under all the facts of the case as disclosed by the record, I think the jury were authorized to ñnd that Griffin and Hersey had entered into a conspiracy for the raping of the female by Hersey, and that Griffin was present at the scene of the crime, aiding and abetting Hersey in the latter’s assault with intent to. rape. In my opinion Griffin was guilty as principal in the second degree. See Howell v. State, 160 Ga. 899 (129 S. E. 436).


text:
    18229.
    HEATON v. THE STATE.
    1. The rulings on the demurrer to the plea in abatement -were not erroneous.
    2. The court did not err in overruling the demurrer to the traverse to that portion of the-plea in abatement which was not stricken by demurrer.
    3. The court properly directed a verdict against the plea in abatement, and did not err in overruling the motion for a new trial as to the issue raised by that plea.
    4. A verdict as follows: “We, the jury, find the defendant, W. W. Heaton, guilty. This the 8th day of February, 1927. H. M. McRae, Foreman,” which is immediately followed by the words and figures, “Minimum 3 years, maximum 5 years,” is sufficiently clear as to- the maximum and minimum punishment. It is immaterial that the portion of the verdict fixing, the penalty was written .after and not before the foreman’s signature. Simpson v. Stale, 34 Oa. App. 487 (130 S. E. 215).
    5. Jurors related within the prohibited degree to depositors of a bank are not, for this reason, incompetent to act as grand-jurors upon an investigation of a charge against its president accused of embezzlement from the bank, where it is not charged'that the bank was insolvent; nor are jurors so related incompetent to sit upon the trial of such a case where the embezzling did not cause insolvency of the bank.
    6. The indictment alleged that the offense charged “was unknown prior to January 1, 1924, and, being unknown, could not be prosecuted prior to that time, and the statute of limitations did not, therefore, begin to run until said offense was discovered and became known.” The evidence submitted was sufficient to show that the crime was not barred by the statute of limitations at the time the indictment was returned.
    7. The ground of the motion which alleged that the court erred in permitting “A. L. Jackson, a? witness in said case, to testify, over the objection of counsel for the defendant to the effect that anything he might have heard outside of the presence of the defendant would not be proper,” is too indefinite, and presents nothing for determination by this court.
    8. The court did not err in refusing to allow a witness who had audited the books of the bank to testify that after making an examination of the assets and liabilities of the bank he reached the conclusion that the bank was insolvent.
    9. After a witness had testified as to the connection of the defendant with several business concerns named, including the bank the funds of which he was charged with embezzling, the refusal of the court to allow the witness to swear that all these concerns had failed was not error for the reason, assigned by counsel for the defendant, that the failing condition of these enterprises was calculated to make the defendant more or less forgetful, and accounted for his not making a certain entry which would have relieved him of the charge of embezzlement.

      Criminal Law, 16 C. J. p. 413, n. 91, 13;, p. 414, n. 31; p. 615, n. 65; p. 1112-, n. 97; p. 1125, n. 25; 17 C. J. p. 89, n. 63. Embezzlement, 20 C. J. p. 483, n. 40. Grand Juries, 28 C. J. p. 770, n. 15. Indictments and Informations, 31 C. J. p. 684, n. 24. Juries, 35 C. J. p. 319, n. 16.

      10. It is not insisted by counsel for the plaintiff in error that the evidence is not sufficient to convict.
    Decided July 28, 1927.
    Embezzlement; from Haralson superior court—Judge Maddox presiding. April 29, 1927.
    Application for certiorari was made to the Supreme Court.

      John 8. Edwards, 8. Holdemess, for plaintiff in error.

      8. W. Ragsdale, solicitor-general, E. 8. Ault, contra.
   Bloodworth, J.

The foregoing headnotes will be understood by reading the following statement of facts: W. W. Heaton, the plaintiff in error, was charged with embezzling “certain securities of [the] . . Bank of Tallapoosa, to wit, certain warehouse receipts delivered to him in the fall of the year 1920 by H. Y. Hutcheson . . as collateral security for notes then and there held by said bank.” The defendant filed a plea in abatement, on the grounds: (a) That certain grand-jurors who found the bill were disqualified to sit on the grand jury, for the reason that they were related to depositors in the bank from which the funds were alleged to have been embezzled. (6) That in drawing the grand jury from the box the judge, out of the presence of the accused and on his own knowledge of their relationship to the depositors and officers of the bank, 0and after conferring with others as to the competency of these jurors, laid the -names of certain of these jurors aside as disqualified, and did not put their names on the jury list, but drew others in their stead. (c) That prior to the finding of the special presentment the accused had not been arrested on this charge, nor did he have any notice or information of any sort that this investigation would be made by the grand jury at that term, (d) That at his first opportunity after notice that the special presentment had been returned against him -he made his objection thereto.

Counsel for the State demurred to the plea in abatement on the following grounds: (a) The plea is insufficient in law. (&) The grand jurors would not be disqualified upon the grounds stated in the plea, (c) The plea fails to state or show how the jurors would have been disqualified in the event they had been drawn for service in said case. (d) The plea fails to allege that the particular jurors whose names were not put on the jury list would have been qualified to act as grand jurors if they had been required to serve as such. The court sustained the demurrer in part and overruled it in part. A trial was had upon a traverse to the plea in abatement. After hearing the evidence the court directed the jury to render a verdict in favor of the traverse and against the plea. A motion for a new trial was made on this issue and was overruled. The case proceeded to trial upon its merits, and the jury returned a verdict finding the defendant guilty. After this hearing on the merits a motion for a new 'trial was made, and when that was overruled a bill of exceptions was filed.

Judgment affirmed.

Broyles, C. J., and Lulce, J., concur.


text:
    18146.
    Holden v. Harmon.
    Boundaries, 9 O. J. p. 250, n. 67; p. 251, n. 88; p. 252, n. 3; p. 253, n. 14.
    Decided August 12, 1927.
    Processioning; from Cherokee superior court—Judge John S. Wood. February 28, 1927.

      E. F. Sharp, E. G. Vandiviere, for plaintiff.

      F. W. Goleman, for defendant.
   Luke, J.

The issue in the trial of a processioning ease is not as to title to the land (McAlpin v. Thompson, 29 Ga. App. 495 (7), 116 S. E. 64), and where the plaintiff introduces in evidence the petition to the proeessioners, with all entries thereon, including the affidavit as to service on the adjoining landowners, and the return of the proeessioners, and the surveyor’s plat, a prima facie case is made out. Castleberry v. Parrish, 135 Ga. 527 (3 a) (69 S. E. 817), and cit., Georgia Talc Co. v. Cohutta Talc Co., 140 Ga. 245 (4), 247 (78 S. E. 905).

In the instant case an amendment to the plat and to the return of the proeessioners was allowed without objection. Such an amendment was allowable. Thornton v. Hitchcock, 139 Ga. 749 (78 S. E. 179). The proceedings as amended and as introduced in evidence made out a prima facie case, and the court erred in dismissing the ease. The case of Rawls v. Nowell, 133 Ga. 874 (67 S. E. 187), is distinguished from this ease by its particular facts.

Judgment reversed.

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


author: Jenkins, P. J.

text:
    17613.
    Massachusetts Cotton Mills et al. v. Hawkins.
    Master and Servant, 39 C. J. p. 1307, n. 15; p. 1311, n. 48; p. 1352, u. 23.
    Decided September 9, 1927.
    Damages; from FloycT superior court—Judge Maddox. July 26, 1926.
    Willingham, Wright & Covington, for plaintiffs in error.

      Porter & Mebane, contra.
   Jenkins, P. J.

1. Under the answers returned by the Supreme Court to the questions certified to it in this case (164 Ga. 594, 139 S. E. 52), the petition of the plaintiff, as amended, failed to state a cause of action against the defendants Massachusetts Cotton Mills and II. P. Moikleham, and the court erred in overruling the general demurrers interposed by those defendants.

2. The original petition set forth a cause of action as against the defendant Donehoo. This is true whether or not the warrant which he was attempting to execute was valid or invalid, and whether he knew .or did not know of its invalidity. The gist of the action is not an illegal arrest, but is the alleged tortious conduct of the officer in attempting to effect an arrest. Since, however, it is not alleged that the arresting officer knew of the alleged invalidity of the warrant, the facts set forth respecting its invalidity could have no bearing upon the question of his liability or the extent of his liability. Accordingly, the special demurrer interposed on his behalf to the amendment setting up the invalidity of the warrant, but not alleging that the defendant had knowledge of such fact, should have been sustained.

Judgment affirmed in part and reversed in part.

Stephens and Beil, JJ., concur.


author: Stephens, J.

text:
    17618.
    Ralston Purina Company v. Arthur.
    Evidence, 22 O. J. p. 636, n. 66.
    Sales, 35 Cyc. p. 52, n. 41; p. 55, n. 53; p. 86,- n. 26.
    Trial, 38 Cyc. p. 1565, n. 84.
   Stephens, J.

1. Where a written instrument purporting to be a contract of sale was entered into between the Ralston Purina Company, through its sales agent, and the purchaser, which instrument by its terms provided that the agreement should become effective only when acknowledged in writing by an officer of the company, a letter from the company to the purchaser, containing an acknowledgment or acceptance of the agreement, but which was signed by the company’s sales manager, who was in fact not an officer of the company, was not sufficient to constitute an acceptance by an officer of the company, under the terms of the agreement. Weems v. Albert Pick & Co., 33 Ga. App. 579 (127 S. E. 819).

Decided September 9, 1927.

Action for breach of contract; from city court of Albany— Judge Clayton Jones. July 30, 1926.

S. B. Lippiti, for plaintiff.

Milner & Farhas, R. L. Dawson, for defendant.

2. Where the sales manager has no authority whatsoever in behalf of the company to enter into contracts of sale binding upon the company or to waive any of the provisions of a contract of sale, a letter signed by him is insufficient as a waiver by the company.of the provision in the contract requiring acceptance by an officer of the company before the contract should become effective.

3. Where a writing in the form of a contract of sale, containing the provision that it shall become effective only when acknowledged in writing by an officer of the company, is never in fact acknowledged by an officer of the company, and this provision in the contract is not waived by the company, it amounts only to an offer to purchase on the part of the purchaser.

4. Where the offer on the part of the purchaser to the seller is for the purchase of a number of sacks of commodities to be used as cow-feed and chicken-feed, a shipment by the seller to the purchaser of a part of the goods ordered does not amount to an acceptance of the purchaser’s offer to purchase all the goods contained in the offer, but amounts to an acceptance of the offer pro tanto only to the extent off the goods shipped. Chickamauga Mfg. Co. v. Augusta Grocery Co., 23 Ga. App. 163 (98 S. E. 114); Weems v. Albert Pick & Co., supra.

5. Statements by the purchaser from time to time, whether to the seller or not, or in his testimony delivered upon the stand, that the purchaser had a contract with the seller, amount to no more than the purchaser’s opinion at the time as to the legal effect of the alleged contract. Such statements have no probative value whatsoever, when taken in connection with the undisputed evidence, as tending to establish any contractual relationship between the parties.

6. In a suit by the seller against the purchaser to recover from the defendant damages for am alleged breach of the contract by reason of the defendant’s refusal to accept from the plaintiff the remainder of the goods not shipped, where it did not appear from the evidence that any officer of the seller acknowledged the contract, or that any one having authority from the seller to make contracts of sale acknowledged the contract or waived the provision, as to acknowledgment by an officer of the seller, and where it did not appear that the seller in any wise accepted the purchaser’s offer to purchase the goods not shipped, the evidence failed to authorize a verdict for the plaintiff, but as a matter of law demanded a verdict for the defendant. The court therefore did not err in directing a verdict for the defendant.

Judgment affirmed.

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


text:
    17687.
    Bennett v. Igleheart Brothers.
    Contracts, 13 C. J. p. 782, n. 65.
    Evidence, 22 C. J. p. 101, n. 41; p. 102, n. 44.
    Sales, 35 Cye. p. 83, n. 7; p. 166, n. 2.
   Stephens, J.

1. Where the plaintiff testifies that he deposited in the United States mails a letter properly stamped and addressed to the defendant, the presumption arising therefrom that the letter was received by the defendant is not conclusively rebutted by the testimony of the defendant himself that he did not receive the letter, where the defendant is contradicted in other material portions of his testimony by the evidence introduced, thus authorizing the jury to find that the defendant has been successfully impeached and that his testimony to the effect that he did not receive the letter is incorrect. Although the defendant in this case testified positively that he did not receive the letter, and further testified that he did not receive any letters whatsoever from the plaintiff, yet there having been introduced in evidence a letter from the defendant to a representative of the plaintiff, in which the defendant made reference to facts stated in a letter written by the plaintiff, directed to the defendant, a few days prior to the date of the defendant’s letter, thus authorizing the inference that the defendant admitted the receipt of a letter from the plaintiff, and it appearing from the evidence that, at the time the plaintiff’s letter, which was addressed to the defendant under his trade name, as the Grady Grocery Company, should in the due course of mail have been received by the defendant, and that the defendant employed at his place of business a bookkeeper, who in his testimony failed to deny that the letter had been received, the jury would be authorized to infer that the defendant was mistaken in his testimony to the effect that he had not received the particular letter from the plaintiff, the receipt of which the defendant had denied. Strauss v. Pearlman, 15 Ga. App. 86 (82 S. E. 578).

2. In a suit by the alleged seller against the alleged buyer of certain personalty under a contract which the plaintiff alleged arose by the plaintiff’s acceptance of an offer made by tne defendant, which acceptance the plaintiff testified had been communicated to the defendant in a letter which the plaintiff testified had been placed in the United States post-office, properly stamped and addressed to the defendant, and which the defendant in his testimony denied receiving, where the evidence was as above indicated, the jury were authorized to find that the acceptance of the plaintiff had been communicated to the defendant and that a contract between the parties had thereby arisen.

3. Where the contract sued upon is evidenced by an order by the defendant as buyer to the plaintiff as seller for the shipment of a number- of barrels of flour, and where the order contains a provision, “time of shipment, 90 days buyer’s option. Routing L. &- N. A. O. L. 10Í bbl. per mo. beyond,” this provision does not give the buyer an option to refuse to accept the goods within the ninety-day period and thereby be relieved from his obligation under the contract, but gives the buyer the right only to call for shipment of 'the goods ordered at any time within this period.

Decided September 9, 1927.

Breach of contract; from city court of Cairo—Judge Bigsby. September 13, 1926. f

W. H. Duckworth, for plaintiff in error. S. P. Gain, contra.

4. Whgre parties have orally agreed upon the terms of a contract, and one of the parties prepares it in writing and delivers it to the other for his signature, representing to the latter that the writing contains the terms of the contract in a, certain particular,. whereas in fact the writing does not contain these terms but contains other terms, and where the party to whom the writing is delivered is able to read but signs the writing without reading it, because the party handing it to him is in a hurry to catch a train, and can not wait for the contract to be read, the signing of the writing under such circumstances is not conclusively, as a matter of law, induced by fraud, but a jury may infer that the party signing the writing did so not as a result of the fraud perpetrated upon him but as a result of his own negligence and carelessness in not reading the writing before signing it.

5. The verdict found for the plaintiff was authorized by the evidence.

Judgment affirmed.

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


text:
    17698.
    Greenway v. Reese.
    Executions, 23 O. J. p. 587, n. 14; p. 588, n. 20; p. 589, n. 55 New.
    Decided September 9, 1927.
    Claim; from Laurens superior court—Judge Camp. September 18, 1926.

      M. E. Blackshear, D. P. Tinley, 8. P. New, for plaintiff in error.

      William Brunson, contra.
   Stephens, J.

1. A claimant who has never had possession of the property levied upon and who has never had any right, title, or interest whatsoever in the property can not attack the levy by setting up defensive matter in behalf of the defendant in fi. fa. Parker v. Mathews, 106 Ga. 49 (31 S. E. 784).

2. Where it appears from uncontradicted evidence that the property levied upon was, at the time of the levy, in the possession of the defendant in fi. fa., and there is no evidence tending to establish in the claimant any possession, or any right, title, or interest whatsoever in the property, the claimant can not attack the levy upon the ground that the judgment against the defendant in fi. fa. was invalid by reason of the existence of a former judgment in behalf of the plaintiff against the defendant in fi. fa. in a suit based upon the same subject-matter. The trial court' therefore properly directed a verdict sustaining the levy.

Judgment affirmed.

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


text:
    17746.
    Cochran et al. v. Bennett, superintendent of banks.
    Banks and Banking, 7 O. J. p. 743, n. 74 New.
    Decided September 9, 1927.
    Equitable petition; intervention; from Eulton superior court-judge Howard. September 28, 1926.
    Article 7, section 7, of the banking act, approved August 16, 1919 (6a. L. 1919, p. 135, 156), reads as follows: “Upon taking possession of the assets and business of any bank, the Superintendent is authorized to collect all moneys due to such bank, and to do such other acts, as are necessary to conserve its assets and business, and shall proceed to liquidate the affairs thereof, as hereinafter provided. The Superintendent shall collect all debts due and claims belonging to such bank, and by making application to the Superior Court of the county in which such bank is located, or to the Judge thereof, if said Superior Court be not then in session, may procure an order to sell, compromise or compound any bad or doubtful debt or claim, and on like order the Superintendent may sell the real and personal property of such bank ' on such terms as the court, or the Judge thereof, shall direct, but on any such court' proceedings the bank shall be made a party by a proper notice issued from the court, and the hearing of any such application or petition by the Superintendent may be had at any time, either.in term or vacation, after the bank has had five (5) days notice of such application.”
   Stephens, J.

The judge of the superior court, when passing upon an application of the superintendent of banks for permission to sell the assets of a bank which lias been taken over by the superintendent, and in passing an order authorizing a sale of the assets of the bank by the superintendent, as is provided in article 7, section 7, of the banking act, approved August 16, 1919 (Ga. L. 1919, p. 135, 150), is -not administering the assets of the bank, and passes upon and adjudicates no rights of' parties, but is merely, under statutory authority, directing a State officer who is not an officer or receiver of the court, in the discharge of a statutory duty. This is true notwithstanding that the statute requires that before the passage of such order the bank be made a party to the proceedings, by proper notice issued by the court. Such an order of sale is not judicial, but is purely administrative or ministerial, and is therefore not a judgment of a court which can be reviewed by a writ of error. Philadelphia Underwriters v. Folds, 156 Ga. 773 (2) (120 S. E. 102); In re Chetwood, 165 U. S. 443 (17 Sup. Ct. 385, 41 L. ed. 782); Ex parte Moore, 6 Fed. (2d) 905, 908; Fifer v. Williams, 5 Fed. (2d) 286, 288; In re Union Bank, 176 App. Div. 477 (163 N. Y. Supp. 485, 488).

'Writ of error dismissed.

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

H. E. Anderson, for plaintiffs in error.

Orville A. Parle, Oarl N. Davie, contra.


text:
    17821.
    Rankin et al. v. Griffeth.
    Alteration of Instruments, 2 C. J. p. 12S9, n. 18 New; p. 1293, n. 52.
    Decided September 9, 1927.
    Complaint; from Jackson superior court—Judge Stark. November 4, 1926. •

      Pemberton Cooley, E. G. Cooley, for plaintiffs in error.

      Jere 8. Ayers, contra.
   Stephens, J.

1. In a suit upon a promissory note, where the defendants pleaded that they were sureties upon the note and that after its execution the note was materially altered by the plaintiff, who was the payee, testimony of the defendants to the effect that they signed the note in its original and unaltered condition and left it in the hands • of the maker before delivery to the plaintiff, was alone insufficient to authorize the inference that the .note was altered by the plaintiff.

2. There being positive, uncontradicted, and unimpeaclied testimony of the plaintiff to the effect that the note sued on was not altered by him, and it being undisputed that the defendants executed the note, there was no evidence to sustain the plea that the note was altered by the plaintiff. The court did not err in excluding the defendant’s testimony as above indicated and in directing a verdict for the plaintiff.

Judgment affirmed.

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


text:
    17580.
    Hodges v. Planters and Peoples Mutual Fire Association of Georgia.
    Evidenee, 22 p. J. p. 96, n. 92; p. 100, n. 29; p. 101, n. 41; p. 102, n. 49, 50.
    Eire Insurance, 26 C. J. p. 72, n. 19; p. 148, n. 51; p. 198, n. 51; p. 538, n. 70.
    Insurance, 32 O. J. p. 1152, n. 95.
   Stephens, J.

1. Of two inconsistent clauses appearing in the body of an 'insurance policy, the one more favorable to the insured will be adopted. Where a clause in a policy of fire insurance provides that “if, at any time, there shall be a change of title or ownership of the within described property, the obligation of the insured and the association shall cease,” and another clause further on in the policy provides that if the insured “shall mortgage or deed his . . property to secure a debt or to obtain money, the said policy shall be cancelled by the president of this association unless the secretary and treasurer and the president of this association approved of the said loan or mortgage or deed to secure debt, and also approve of the policy to remain in force,” a transfer of the title to the property by the insured to secure a debt will not ipso facto void the policy, but it can not be voided on account of such a 'transfer until the president of the association elects to cancel it upon this ground.

Decided September 10, 1927.

Complaint on fire policy; from city court of Keidsville—Judge Cowart. June 16, 1926.

A. 8. Way, for plaintiff. W. T. BurlchaMer, for defendant.

2. While the posting of a letter properly addressed and stamped will authorize an inference that the letter was afterwards received in due course of mail by the addressee, such posting has no value as tending to establish an inference that the addressee received it and such an inference is not authorized, where there is positive, uncontradicted, and unimpeached testimony by the defendant that he did not receive the letter. Union Brokerage Co. v. Beall, 30 Ga. App. 748 (3) (119 S. E. 533); Strauss v. Pearlman, 15 Ga. App. 86 (82 S. E. 578); Parker v. Southern Ruralist Co., 15 Ga. App. 334 (2) (83 S. E. 158).

3. In a suit by the insured against the association to recover under the policy for a loss sustained, one of the grounds of defense relied upon by the defendant being that before the loss occurred the defendant had, by notice to the insured, cancelled the policy, and the only evidence of notice by the association to the insured of an intention to cancel the policy being the testimony of the secretary and treasurer of the association to the effect that in a letter properly stamped and addressed to the insured and deposited in the mails he notified the insured of the cancellation of the policy by the association upon the ground of nonpayment of assessments, and it being positively testified by .the insured that she had never been notified of the cancellation or forfeiture of the policy by the association prior to the date of the destruction of the insured property, and had never been called upon to surrender or deliver up the- policy, and there being no evidence that any one other than the insured was in the habit of opening or likely to open the insured’s mail, and there being no evidence tending to impeach or otherwise contradict the evidence of the insured, it appears undisputedly and conclusively that the insured had, prior to the date of the loss, received no notice of the cancellation of the policy.

4. The evidence demanded the inference that the policy had not been voided or cancelled either by reason of a transfer of title to the property insured or by reason of a nonpayment of assessments by the plaintiff, but that at the time of the fire the policy was still in force; and there being undisputed evidence that the plaintiff had sustained the loss alleged, and that the defendant had failed to pay the same, the verdict found for the defendant was unauthorized by the evidence.

Judgment reversed.

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


text:
    17590.
    Parker v. Nolan.
    Attachment, 6 O. J. p. 500, n. 22 New; p. 501, m 38; p. 528, n. 50 New; p. 531, n. 1; p. 535, n. 40; p. 537, n. 64; p. 540, n. 77; p. 545, n. 13.
   Stephens, J.

1. Where, after a levy on personal property under an attachment and before the trial, the defendant in attachment agrees with the plaintiff that the sheriff may sell the property and hold the funds derived from the sale, this agreement will not, on the plaintiff’s failure' to recover, preclude the defendant afterwards, in a suit against the plaintiff in attachment upon the attachment bond, from recovering for the damage sustained by him in consequence of the suing out of the attachment. If such an agreement amounted to a consent by the defendant in attachment to a judgment upon the attachment, and therefore to a waiver by him of damages because of the attachment, this effect should have been given in the attachment proceeding by a judgment for the plaintiff in attachment. The agreement can not afterwards be relied upon by the plaintiff in attachment as a defense to a suit against him upon the attachment bond.

2. The damages recoverable by a defendant in attachment against the plaintiff in attachment upon the attachment bond, where, the plaintiff in attachment fails to recover in the suit, include reasonable attorney’s fees expended or incurred by the defendant in attachment, together with the amount of other damage sustained in consequence of the suing out of the attachment.

3. Where the attachment is sued out prematurely and levied upon personal property of the defendant in attachment, and such personalty is sold under a short-order sale as being perishable, or where the defendant in attachment agrees with the plaintiff in attachment to waive the necessity of obtaining an order for a short-order sale and the expense consequent thereto, and permits the property to be sold at the insistence of the plaintiff as under ‘ a short-order sale, and therefore consents to the sale without prejudice to his rights, such forced premature sale of the defendant’s property, to his damage, furnishes a basis for a recovery by him under the attachment bond. Where the plaintiff in attachment is not threatening or seeking to obtain a short-order sale, but where the defendant in attachment, before final judgment, voluntarily agrees to the sale of the property attached and levied upon, the sale of the property thus being voluntarily consented to by the defendant in attachment, he can not recover for damage sustained by him as a result of such premature sale.

4. Where the defendant in attachment operates a dairy and the property attached and levied upon consists of the milch cows which he is using in the operation of the dairy, and the levy of the attachment and the sale of the property cause damage to him from loss of profits in his business, he may, in an action for a wrongful suing out of the attachment, recover for such damage.

5. In a suit by the defendant against the plaintiff in attachment to recover damages on the attachment bond, after the plaintiff’s failure to recover, evidence that the defendant in attachment was financially unable 'to replevy the property is material and relevant, not for the purpose of establishing punitive or exemplary damages, which are not recoverable, but to establish the defendant's actual damage and to show his inability to minimize his damage.

Decided September 10, 1927.

Action for damages; from DeKalb superior court—Judge Hutcheson. June 8, 1926.

Carl T. Hudgens, for plaintiff.

J. Howell Green, B. H. Burgess, for defendants.

6. Where the attachment was for the purchase-money of the property attached, and where it appears that the proceeds derived from the 0 sale of the property, which sale was consented to by the defendant in attachment, were applied to payment of the purchase-money, the defendant can not, in a suit upon the bond, recover as a part of his damage the value of the property sold.

7. This being a suit by the defendant in attachment to recover upon the* attachment bond damages because of the suing out of the attachment, and there being some evidence tending to establish actual damage to him therefrom, and it appearing that the plaintiff in attachment had failed to recover in the attachment suit, the court erred in granting a nonsuit and in excluding certain evidence offered. See, in this connection, Fourth National Bank v. Mayer, 9G Ga. 728 (24 S. E. 453); Oakes v. Smith, 121 Ga. 317 (48 S. E. 942). Except as indicated above, no. error appears.

Judgment reversed.

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


text:
    17785.
    Ingram v. Metropolitan Life Insurance Company.
    Death, 17 C. J. p. 1174, n. 3, 5.'
    Life Insurance, 37 C. J. p. 639, n. 52.
   Stephens, J.

1. The presumption of death which arises after seven years’ disappearance unaccounted for is a presumption only as to the fact of death, and not as to the time of death. Where a person has disappeared for a period of seven years, and his disappearance is unaccounted for, ' and where there is no evidence whatsoever from which it can be inferred that the person met with death at any time during this period, a presumption of fact arises' that, after the expiration of the seven-year period, such person is dead, but no presumption arises that he died at any particular time during this period. Cofer v. Flanagan, 1 Ga. 538, 543; Adams v. Jones, 39 Ga. 479 (4); Watson v. Adams, 103 Ga. 733, 736 (30 S. E. 577); Davie v. Briggs, 97 U. S. 628, 634 (24 L. ed. 1086); 8 R. C. L. 712, § 8; 17 C. J. 1174; Butler v. Supreme Ct. I. O. F., 53 Wash. 118 (101 Pac. 481, 26 L. R. A. (N. S.) 293, and note); Security Bank v. Equitable Life Assurance Society, 112 Va. 462 (71 S. E. 647, 35 L. R. A. (N. S.) 159, Ann. Cas. 1913B, 836).

2. In a suit by the beneficiary under a life-insurance policy, against the insurer, to recover for the death of the insured, where the insured has disappeared for a period of seven years and his disappearance is unaccounted for, and where there is no evidence from which it can be inferred that the insured met with death at any particular time during this period, and where the premiums upon the policy were paid only for a period of two years after the insured’s disappearance, the evidence does not demand the inference that the insured, although dead, died before the expiration of the policy. The verdict found against the plaintiff, in a suit to recover the full amount of the policy, was therefore authorized.

Decided September 12, 1927.

Complaint on life policy; from city court of Macon—Judge Hall. November 30, 1936.

Statement of facts by Stephens, J.

Mrs. Emily E. Ingram instituted suit against the Metropolitan Life Insurance Company to recover $3500 which she claimed as beneficiary under a policy of life insurance covering the life of her husband, Louie E. Ingram. The policy was taken out on September 14, 1914. The insured paid the premiums through September, 1917. The premiums which fell due in September, 1918, and in September, 1919, were paid by the plaintiff, and continued the policy in force until September, 1930. No premiums were paid after September, 1919, and the policy must have lapsed for nonpayment • of premiums in 'September, 1930, unless the insured died before that time. No positive proof of death was offered by the plaintiff.

The case was submitted to the court without the intervention of a jury, upon an agreed statement of facts, Avhich set out that on or about February 1, 1918, the plaintiff was summoned from Barnesville, where she and her husband were living, to the bedside of her mother in Borne; that on or about February 5, 1918, the plaintiff telegraphed from Borne to her husband, the insured, in Barnesville that her mother was dying, and asking him to come at once. It was ascertained that the insured left Barnesville, after receiving the telegram, on one of the night trains for Borne, but he' never reached Borne and has not since been seen or heard from. No reason has been given to explain his disappearance.

Subsequent to the nonpayment of the premium which fell due in September, 1930, the plaintiff requested that she be paid the cash-surrender value on the policy. The insurance company advised her that the cash-surrender value could not be paid, because of a possible interest whicb might exist in the insured, but offered to issue extended fully paid-up insurance upon the life of the insured, in her favor as beneficiary, for a reduced amount, in accordance with the table set out in the policy. The plaintiff surrendered the policy to the defendant company, and an endorsement was made thereon -on March 1, 1921, showing that she was entitled to $437 of fully paid-up insurance.

Judgment affirmed.

Jenhins, P. J., and Bell, J., eoneur.

On February 19, 1925, more than seven’years after the disappearance of the insured, the plaintiff wrote to the defendant company, advising it of the continued disappearance of the insured, and thereafter furnished additional information with regard to his disappearance. The defendant company acknowledged a liability to the plaintiff in the sum of $437, but she declined to accept this sum, claiming to be entitled to the full amount of the policy, to wit, $2500, the amount for which this suit was instituted.

It was agreed that neither the plaintiff nor the defendant company knew positively at the time of trial whether the insured was living or dead, or, if dead, under what circumstances, or at what time or in what manner he met his death.

The trial judge found for the plaintiff in the sum of $437, and she excepted.

Hall, Grice & Bloch, for plaintiff.

Jones, Pa/rlc & Johnston, for defendant.


author: Jenkins, P. J..

text:
    17928.
    Griffin Fuel Supply Company v. Automobile Insurance Company of Hartford.
    Dismissal and Nonsuit, 18 C. J. p. 1187, n. 60; p. 1188, n. 69.
    Marine Insurance, 38 C. J. p. 1172, n. 46; p. 1173, n. 65, 66, 67, 68.
    Pleading, 31 Cyc. p. 289, n. 61; p. 290, n. 69; p. 311, n. 53; p. 317, n. 85, 87; p. 318, n. 90; p. 358, n. 3.
   Jenkins, P. J..

1. Where suit is brought on a policy of marine insurance ' by which the defendant company contracts to indemnify the insured against loss sustained by reason of the adventures and perils of the waters named in the policy, the plaintiff must allege and show that the loss sued for resulted from one of the perils insured against. 38 C. J. p. 1173, § 520; Lipshitz v. New Zealand Insurance Co., 34 Ga. App. 825 (3), 832 (132 S. E. 131).

2. Where it is apparent, taking without question the statements of the petition as made, that there can be no right of action, a general demurrer is sufficient, and it need not point out wherein the petition is defective. Harrell v. Atkinson, 9 Ga. App. 150, 153 (70 S. E. 954). A special demurrer complaining' that the cause of action is imperfectly or inadequately stated must “put its finger upon the very point,” and a demurrer styling itself a general demurrer, in that it attacks the petition as a whole, can not be construed as special in its nature and effect unless it points out the particular defect in the pleading attacked. Southern Ry. Co. v. Chambers, 126 Ga. 404, 409 (55 S. E. 37, 7 L. R. A. (N. S.) 926). In the instant case the petition alleging that the vessel insured by the policy was sunk while in the possession of the plaintiff, and while being watched by a watchman, and while tied up to a wharf in the waters named in the policy, “without fault on the part of petitioner and from a cause against which petitioner was insured and indemnified against by the defendant company under its policy of insurance,” would not have been subject to a demurrer upon the mere general complaint that it failed to set forth a cause of action, but since the demurrer, although styling itself as general, in that it attacks the petition as a whole, puts “its finger upon the very point” of complaint, by setting forth that “the petition does not allege the cause of the sinking or specify the peril to which the sinking was due,” and does not “allege facts which show that the loss was due to one of the perils insured against,” and since the court by its order specifically approved this special ground of complaint, and by its order afforded the plaintiff opportunity to cure by amendment the defect thus specifically complained of, the demurrer will be treated as special in its nature and effect, so as to take the ease without the operation of the general rule that a petition is not to be dismissed on general demurrer when it sets forth a cause of action, although imperfectly. See, in this connection, McDonald v. Georgia So. & Fla. Ry. Co., 138 Ga. 15 (74 S. E. 691); McSwain v. Edge, 6 Ga. App. 9, 11 (64 S. E. 116); Wrightsville & Tennille R. Co. v. Vaughan, 9 Ga. App. 371 (2), 375 (2) (71 S. E. 691); Civil Code (1910), § 5631.

Decided September 12, 1927.

Complaint on insurance policy; from Chatham superior court —Judge Meldrim. January 4, 1937.

John E. Schwarz, Kravitch & Wiseman, for plaintiff.

Lawton & Cunningham, for defendant.

3. The plaintiff having failed to avail himself of the opportunity given him to cure the defect set forth by the demurrer, the court did not err in dismissing the petition, and it is unnecessary to deal with the other grounds of the demurrer.

Judgment affirmed.

Stephens and Bell, JJ., concur..