text:
    16071, 16072.
    CRITCHFIELD v. AIKIN; and vice versa.

    X. Where the petition in an action against an employer for injury to an employee, in addition to the usual allegations as to jurisdiction, employment, etc., alleged that the employee was injured by an unsafe appliance furnished by the employer, and alleged 'negligence by the employer in furnishing the appliance, and orders by the general manager of the employer’s business to the employee to use the defective appliance, an amendment alleging that the defendant had “in his regular employ in his said plant and business . . more than 10 men, and was not operating under the workmen’s compensation act,” was properly allowed.
    2. The question of negligence being immaterial under the workmen’s compensation act, and the employer, when he refuses to operate under that act as well as when the case is brought under it, being deprived of the defense of negligence of the employee, or negligence of a fellow servant, or of assumption of risk, the amended petition was not subject to demurrer on the ground that it showed that the injury was caused by the negligence of the plaintiff or of a fellow servant.
    3. Whether or not the defendant employed ten or more men within the purview of the compensation act was a question of fact, to be determined by the jury; and there was sufficient evidence to authorize the finding that this requisite number was not so employed.
    4. The record discloses no reversible error in the rulings or the charge of the court.
    Decided April 14, 1925.
    Action for damages; from Glynn superior court—Judge High-smith. October 11, 1924.
    Charles W. Critchfteld sued L. E. Aikin for damages on account of personal injuries. So much of the petition as is necessary to an understanding of the decision may be summarized as follows: (1) Defendant is a resident of Glynn county, Georgia. (2) On September 7, 1922, plaintiff was employed by defendant as a mechanic at the sawmill of defendant in Wayne county, Georgia. (3) About three weeks prior to September 7, 1922, plaintiff stated to Mr. G., “the general manager in charge of defendant’s mill, that raw-hide lacing was needed for the belts; to which” Mr. G. “replied that leather lacings were not necessary, that bed-ticking could be used. Petitioner complained that bed-ticking was not safe, to which” Mr. G. “replied, “Where have you been? Bed-ticking is as good lacing as raw-hide. I have used it many and many a day. Use that and go on with the work.’ ” (4) On the morning of September 7, 1922, plaintiff sent to the commissary of the mill for leather lacing, and said that either Mr. G., the general manager, or Mr. Downing Aikin, defendant’s son, sent him some hickory-stripe shirting to be used as lacing for the belt. (5) Plaintiff used said shirting for belt-lacing, and between the hours of 7 a. m. and 4 p. m. of September 7, 1922, the belting broke about six times. At about 4 p. m. of the same day, while plaintiff was standing by the side of the belt, reaching over to oil a bearing of the saw-mandrel, suddenly and without warning the belt broke, struck him in the face, and permanently injured him. (6) The nature and extent of the injury are given. (7) The plaintiff’s age and earning capacity are stated. (8) Defendant was negligent in the following particulars: (a) Defendant did not furnish petitioner with a safe and suitable piece of belting. (&) He did not furnish plaintiff with raw-hide lacing to be used as bolting, (c) The hickory-stripe shirting furnished was not sufficiently strong for the use and work intended.. (d) Defendant did not furnish to plaintiff and his fellow employees safe and suitable appliances for the use and work intended. (9) Plaintiff was damaged in the sum of $15,000.
    The defendant demurred to the petition, because: (1) Its allegations did not authorize a recovery against the defendant. (2) The petition showed that the plaintiff’s injury was occasioned by his failure to exercise ordinary care, and that by the exercise of such care he could have avoided the consequences of the defendant’s alleged negligence. (3) The petition showed that the condition of the belt was obvious to the plaintiff; that the plaintiff knew of the alleged defects and assumed the risk incident to his employment. (4) “It appears from the petition that 'any injury suffered by plaintiff outside his own acts was due to the acts of a fellow servant.”
    On May 12, 1924, the plaintiff amended his petition by adding the following paragraphs: “That on September 7, 1922, and prior thereto, the defendant, L. E. Aikin, had in his regular emplojr in his said plant and business at Mount Pleasant more than ten men, and was not operating under the workmen’s compensation act.” On May 20, 1924, an amendment substantially as follows was allowed without objection: Said sawmill was part and parcel of defendant’s turpentine plant, utilized for making barrel-staves for use in said plant and in the turpentine business of one John Young, for manufacturing lumber for the construction and repair of all buildings, fences, and hotises on defendant’s property at Mount Pleasant, and for the construction of other buildings invthe community.
    •To the allowance of the amendment of May 12, 1924, the defendant objected, because: (l) It undertook to change the cause of action set up in the plaintiff’s petition, and to set out a new and distinct cause of action. (2) It was immaterial and, if allowed, would not, with the original petition, constitute a cause of action. To the ruling allowing the amendment the defendant duly excepted., He likewise excepted to the overruling of his original demurrer to the petition as amended. The case went to the jury, the trial resulted in a verdict and judgment for the defendant, and the plaintiff filed a motion for a new trial, which was overruled, and he excepted. A cross-bill of exceptions was filed by the defendant.
    IF. B. Gills, F. M. Bcarlell, Oliver & Oliver, John Z. Rijan, for plaintiff.

      B. M. Ciarle, Jumes R. Thomas & Hon, Conyers'& Wilcox, for defendant.
   Luke, J.

(After stating the foregoing facts.) In view of the insistence of the defendant that the allowance of the amendment of May 12th was error, and that the overruling of his demurrer to the petition as amended was likewise error, we deem it proper to discuss these questions first.

In the light of the law, the original petition specified the duty of the defendant to furnish plaintiff with suitable appliances to carry on the work of running the sawmill, a definite breach of that duty by supplying inferior belting and unsuitable belt-lacing, and consequent injury to plaintiff by such breach of duty. The amendment neither changed the original cause of action nor set up a new one. It merely deprived the defendant of certain defenses hereinafter enumerated. The amendment was properly allowed. We think this conclusion is sustained in principle by the reasoning in the case of Ellison v. Georgia Railroad Co., 87 Ga. 691 (13 S. E. 809).

The amendment being properly allowed, the next question is: Did the original petition, with the amendment, set out a cause of action? Conceding that the plaintiff was negligent in using defective lacing for the belt, with knowledge of the defect, what then was the effect of the amendment? Certainly to deprive defendant of the following defenses: (a) that the employee was negligent; (&) that the injury was caused by the negligence of a fellow employee; (c) that the employee had assumed the risk of the injury. Workmen’s compensation act, Ga. L. 1920, p. 167, sections 16, 67. The defendant says, however, that the original petition affirmatively shows that plaintiff was precluded from, recovery, and that while the amendment would exclude the enumerated defenses, it could not have the effect of perfecting the petition. If the effect of the compensation, act is to preclude the defendant from making the defenses stated in section 16 thereof, surely it would be quibbling to say that because, in truly and accurately stating his case, the plaintiff showed that he was negligent, or that his injury was caused by the negligence of a fellow servant, or that he assumed the risk of his employment, he could not recover. To take this view would oftentimes nullify the effect of the act, and deprive an honest plaintiff of his legal rights. One of the main objects of the workmen’s compensation act was to enable an injured employee to recover from an employer when, of course, he comes under the act, according to a scheduled and limited rate of compensation, regardless of assumption, of risk dr of whose negligence caused the injury; thus assuring the emploj^ee of some-compensation fpr the injury and assuring the employer that his liability will be limited. This being'true, the plaintiff, in order to have a cause of action under the workmen’s compensation act, or where the employer refuses to operate under the act, need not have a cause of action under the laws applicable where the workmen’s compensation act is not involved; and to hold that a petition under this act must set out a cause of action under the laws pertaining to negligence would defeat the very object of the act. The amendment absolved plaintiff from the force of the very laws invoked by the demurrer, and the demurrer to the petition as amended was properly overruled.

We will next consider the general grounds of the motion for a new trial. In his answer the defendant put the plaintiff to proof of the material allegations of his petition, set up that plaintiff was the superintendent and manager, and pleaded: (a) contributory negligence, (5) assumption of risk, and (c) accident and failure to exercise due care. Was the verdict for the defendant sustained by the evidence? We think so. Whether or not the defendant employed ten or more men within the purview of the compensation act was a question of fact for determination by the jury, and a careful examination of the record convinces us that the jury had the right to conclude that the requisite number of men were not so employed. If the jury did reach this conclusion, the defendant was let into all of his defenses, and the evidence was ample to sustain the verdict. It is perfectly apparent that if the jury had found that the requisite number of men were employed (the evidence being uncontradicted that the defendant failed to take out insurance), the defense would have been obliterated, and the only logical result would have been a verdict for plaintiff. The conclusion is therefore irresistible that the jury found that the defendant was not affected by the compensation act.

The verdict is sustained by the evidence; the record discloses no reversible error in the court’s ruling upon the evidence or in the charge.

Judgment on both bills of exceptions affirmed.

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


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
    16075.
    Citizens & Southern Bank v. Howard.
    Decided April 14, 1925.
   Luke, J.

This is the second appearance of this ease before this court. On the first hearing in the court below a general demurrer to the first count of the petition was overruled; and this ruling, not being excepted to, became the law of the case. The case then proceeded to trial; and this court held that the undisputed evidence clearly established the plaintiff’s case as laid in the first count of her petition, that she was entitled to a verdict and judgment for the amount sued for in that count, and that the court erred in directing a verdict for the defendant and in overruling the plaintiff’s motion for a new trial. It was further stated that as to that feature of the case the sole contention of counsel for the defendant was that the evidence failed to prove the plaintiff’s allegation that the Jesup Banking Company was the agent of the defendant, and that the evidence demanded a finding for the plaintiff on that issue. Howard v. Citizens & Southern Bank, 32 Ga. App. 22. In its original answer the defendant pleaded the very words of the act of 1919 (Ga. L. 1919, p. 207, Park’s Ann. Code Supp., vol. 8, § 2280 (ii)). The amendment filed prior to the second trial of the case is merely an elaboration of this original plea. Held: '

1. In the light of its former decision and the evidence adduced on the second trial of the case, this court is constrained to hold that the verdict and judgment for the plaintiff must stand, none of the grounds of the amendment to the motion for a new trial showing reversible error.

2. This court not being satisfied that the writ of error was prosecuted for the purpose of delay only, the request of the defendant in error that damages be assessed against the plaintiff in error is denied.

Judgment affirmed.

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

Complaint; from Fulton superior court—Judge Ellis. November 8; 1924.

Application for certiorari was made to the Supreme Court.

Winfield P. Jones, for plaintiff in error.

ColquiU & Conyers, Conyers & Wilcox, contra.


text:
    16090, 16157.
    ADAIR & McCARTY BROTHERS v. SMITH et al.; and vice versa.

    In a suit against two or more persons on a joint obligation, set-oil is not available to less than the entire number of defendants. The plaintiffs in this ease having so amended their petition as to strike from it all claims based on the first or individual contract of one of the defendants, so that the petition as amended was an action only on the joint contract of the defendants, the court erred in overruling the motion of the plaintiffs to strike a plea of recoupment which was based on the first or individual contract and which set up a counterclaim in favor of that defendant alone who had signed the first contract. This error rendered the subsequent proceedings nugatory.
    The court did not err in refusing- to strike, on oral motion at the trial, the plea by which the defendants sought to recoup customary charges for storing and handling fertilizers as agents of the plaintiffs.
    Decided April 14, 1925.
    Rehearing denied May 14, 1925.
    Complaint; from Butts superior court—Judge Persons. October 25, 1924.
    Application for certiorari was denied by the Supreme Court.

      W. E. Walhins, Smith, Hammond & Smith, for plaintiff.

      John B. L. Smith, Grady C. Harris, J. LeConle Snoilh, for defendants.
   Luke, J.

When this case was formerly before this court (27 Ga. App. 717, 110 S. E. 317), the court said: “The first of the two contracts set forth in the petition was signed by only one of the defendants, and liability thereon by the other defendant is claimed only by virtue of a separate and independent contract of guaranty, embodied in a letter to plaintiffs signed by such other defendant whereby he guaranteed payment as to a specified quantity of the fertilizer. The other contract was joint, and was signed by both defendants. The defendants were sued jointly and in one count on each of these two contracts; that is, upon the individual contract of one defendant as thus guaranteed by the other, and upon the other or joint contract of both defendants. This could not be done, since such a guarantor is properly sued alone, and the primary debtor is not subject to suit jointly with him.”

The plaintiffs thereafter amended their petition by striking therefrom all claims based upon the first or individual contract of only one of the defendants, leaving -it as a declaration alone upon the joint contract of both defendants; and the plaintiffs made an. oral motion, in the nature of a general demurrer, to strike from the defendants’ answer a plea of recoupment which was based upon the first or individual contract and which set up a counterclaim in favor of that defendant alone who had signed the first contract. The motion to strike was overruled, and the plea of recoupment was allowed to remain as a plea of set-off against the plaintiffs’ claims growing out of the joint contract declared on in the amended petition. Held: (a) “In a suit against two or more persons on a joint obligation, set-off is not available to less than the entire number of defendants.” Wilson v. Exchange Bank, 122 Ga. 495 (50 S. E. 357). (b) While a plaintiff is not, as a general rule, entitled to dismiss his action after a plea of set-off or recoupment is filed, so as to interfere with such plea, yet where, as in this case, the defendant himself invokes the ruling which makes such dismissal necessary, the claim and the counterclaim go out together, (c) Such plea of set-off should have been stricken on the plaintiffs’ oral motion.

The court properly refused to strike, on oral motion at the trial, the defendants’ plea to recoup $92.15 on account of the expense of storing and handling fertilizers as agents of the plaintiffs, since the contract now declared on obligates the defendants to render such service, and is silent as to their compensation therefor, while the plea alleges that, “according to the universal custom of the fertilizer trade, it is recognized and understood by persons in said trade that 50 cents per ton is a fair and reasonable expense to be allowed by fertilizer manufacturers and wholesalers to their agents for and on account of storing and' handling fertilizer supplied to them in the manner of the transactions between plaintiffs and these defendants,” and further designates such a quantity of fertilizer handled as' to justify the amount of this claim. Civil Code (1910), § 1 (4).

The error pointed out above, in refusing to strike the plea of set-oif interposed by one of the defendants alone, rendered the subsequent proceedings nugatory.

Judgment reversed on main bill of exceptions; cross-bill dismissed.

Broyles, G. J., and Bloodwortli, J., concur.


text:
    16162.
    Foy v. The State.
    Decided April 14, 1925.
    Carrying pistol without license; from Clay superior court-judge Yeomans. November 18, 1934.

      JS. B. King, for plaintiff in error.

      B. T. Gastellow, solicitor-general, B. B. Arnold, JS. G. Hill, contra.
   Luke, J.

Where the accused had a pistol in his manual possession, on the public road,- without the license required by the act of 1910 (Ga. L. 1910, p. 134), the case was within the express terms of the act, notwithstanding the accused was the owner of the land on both sides of the road along which he carried the pistol. Cheney v. State, 10 Ga. App, 451 (73 S. E. 617); Leigh v. State, 26 Ga. App. 638 (107 S. E. 284).

(a) This principle controls every ground of error in this case, and the judgment overruling the motion for a new trial was not erroneous for any reason assigned.

Judgment affirmed.

Broyles, C. J., and Bloodwortli, J., eoneur.


text:
    16167.
    Stockburger v. Brooker.
   Luke, J.

1. The sale of all the sawmill timber on a bounded tract of land containing “approximately one hundred acres in timber” is a sale of timber in gross. White v. Adams, 7 Ga. App. 764 (68 S. E. 271); Kendall v. Wells, 126 Ga. 343 (55 S. E. 41).

(a) The clause “approximately one hundred acres in timber” has the same meaning as would the phrase, “one hundred acres, more or less, in timber.” Kendall v. Wells, supra.

2. The defense in this case being that there should be an abatement in the purchase price because the plaintiff fraudulently deceived the defendant as to the acreage of timber purchased, section 4122 of the Civil Code of 1910 is applicable.

(a) The decision in the case of Martin v. Harwell, 115 Ga. 156, 41 S. E. 686 (criticized in Golden v. Shaw, 138 Ga. 379, 75 S. E. 424), holding that said section “does not apply to a sale of timber growing upon land, when there is no deficiency in the quantity of the land, but only misrepresentation as to the quality and character of the timber itself,” evidently does not control the case at bar.

Decided April 14, 1925.

Complaint; from Whitfield superior court—Judge Tarver. December 19, 1924.

Application for certiorari was made to the Supreme Court.

Maddox, Maddox & Mitchell, for plaintiff.

J. A. McFarland, W. M. Sapp, for defendant.

3. When a sale of land or timber is by the tract or entire body, the acreage being limited by the words “more or less” or “approximately,” or words of like meaning, and the defendant seeks an abatement in the purchase price because he was fraudulently misled by the plaintiff as to the actual acreage, he must show both such deficiency in the acreage as will justify a suspicion of fraud and actual fraud. The suspicion “must arise out of a comparison of quantities and out of the magnitude of the resulting deficiency.” “The same facts which justify the suspicion may prove the fraud, prima facie.” Estes v. Odom, 91 Ga. 600, 607 (18 S. E. 355); Kendall v. Wells, supra; Civil Code (1910), § 4122. Actual fraud must be alleged and proved, and “a material representation falsely made by the vendor to a vendee to induce a sale, and made with the knowledge of its falsity, amounts to actual fraud.” Emlen v. Roper, 133 Ga. 766 (66 S. E. 934).

4. “In order for the vendee to estop himself by waiver or acquiescence from seeking redress for the fraud by an action for damages, he would have to be fully informed of the facts at the time of such waiver or acquiescence.” Estes v. Odom, supra.

5. “Previous knowledge of the land or of its boundaries would not preclude the vendee from recovering for fraudulent misrepresentation of quantity, if without fault on his part he was actually deceived and defrauded by the misrepresentation, provided the deficiency was niore than could be fairly covered in the given instance by the phrase 'more or less.’ ” Estes v. Odom, supra.

6. The amendment to the original plea was germane, and the court properly allowed it. The alleged deficiency in this case was approximately fifty per cent., and actual fraud was sufficiently alleged in the amended plea to withstand the demurrers. Emlen v. Roper, supra. There was sufficient evidence to sustain the verdict for the defendant, and the record presents no error in the rulings or the charge of the court that warrants a reversal.

Judgment affirmed.

Broyles, G. J., amd Bloodworth, J., concur.


author: Bloodworti-i, J.

text:
    16184.
    THOMAS v. THE STATE.
    Evidence as to an assault upon a person of a name different from the one that the indictment alleges to. be the name of the assaulted person will not support a conviction of assault with intent to murder, where there is 110 evidence that the person assaulted was ever known or called by the name alleged in the indictment.
    Decided April 14, 1925.
    Conviction of shooting at another; from Wilkes superior court-judge Shurley. December 8, 1924.

      Hugh H. Combs, for plaintiff in error.

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

Charlie Thomas was convicted under an indictment which charged him with assault with intent to murder Bessie Beck by shooting the said Bessie Beck with a pistol. A woman, Bessie Black, was introduced and swore that the accused shot her with a pistol. She swore also that her name was Bessie Lou'Walden. There is not a particle of evidence to show that the accused' shot, or shot at, Bessie Beck, or that Bessie Beck was ever known as Bessie Black or as Bessie Lou Walden, or was ever called by either name. The verdict of guilty, therefore, is contrary to law and evidence. Appling v. State, 26 Ga. App. 418 (106 S. E. 311); Lewis v. State, 90 Ga. 95 (15 S. E. 697).

Judgment reversed.

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


text:
    16246.
    Marshall v. The State.
    Decided April 14, 1925.
    Rehearing denied May 14, 1925.
    Accusation of sale of liquor; from city court of Macon—Judge Jordan. January 9, 1925.

      T. A. Jacobs Jr., W. A. McClellan, for plaintiff in error.

      Roy W. Moore, solicitor, contra.
   Luke, J.

Tliere was some evidence to authorize the verdict, which has . the approval of the judge who tried the case, and, there being no error of law committed on the trial, the court properly overruled the motion for a new trial.

Judgment affirmed.

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


text:
    16247.
    MARSHALL v. THE STATE.
    The evidence did not authorize a conviction of controlling and possessing, keeping for sale, and selling intoxicating liquor.
    Decided April 14, 1925.
    Accusation of .keeping for sale, possessing, and selling liquor; from city court of Macon—Judge Jordan. January 9, 1925.

      Harry H. Hirozior, for plaintiff in error.

      Roy IK. Moore., solicitor, contra.
   Luke, J.

Mrs. Marshall was convicted of having, controlling and possessing, keeping for sale, and selling intoxicating liquors. She excepts to the judgment overruling her motion for a new trial.

That view of the evidence which tends most strongly to uphold the verdict makes the following ease against her: On December 14, 1923, the date the offense is alleged to have been committed, several officers went to the home where the accused and her husband lived, the husband being absent at the time. At the side of the house they met two negro men coming toward the front, one of whom, upon discovering the officers, threw a half pint of whisky under the house. This negro, Grady Milner, was arrested and taken before Mrs. Marshall, and then and there claimed to have bought the whisky from her, and she made no reply to his accusation. But when introduced as a witness for the State at the trial, Milner testified that he did not get the whisky from Mrs. Marshall, that he had never seen her before, that when arrested at her home he was scared, and that he did not remember what he had said. The officers further testified that, upon finding Milner with the whisky, they immediately searched the Marshall home, but found no whisky therein, one of them testifying: “In the kitchen near the sink I found a vessel, a pitcher or bucket, which smelled of whisky faintly.” No other sign or odor of whisky was found. Several neighbors of the accused testified that they had long observed a constant flow of people to and from the Marshall home, including white and colored people, some of whom would come away boisterous .and intoxicated, occasionally throwing away empty bottles as they passed the homes of the witnesses. Some were drinking from bottles as they drove away from the Marshall home in automobiles. But no witness testified that these bottles, or any of them contained or had ever contained whisky or the odor of whisky, and none testified that any of these bottles were procured at the home of the accused, or that any whisky was ever seen in her home or upon her premises, or in her possession, custody, or control at any time or place. In her statement to the jury the accused denied her guilt, claimed to have denied it to the first of the officers who told her what Milner had told them concerning the whisky found in his possession, and admitted that, having once so denied it, slie remained silent when the next officer had Milner to repeat the accusation in her presence. She claimed also that it was a vinegar bottle that the officer thought “smelled of whisky faintly,” and that the drunken people seen by her neighbors passing their homes had also been seen by her passing her home.

Such evidence is insufficient to establish the defendant’s guilt of any of the offenses charged. See, in this connection, Johnson v. State, 161 Ga. 21 (1), 24 (105 S. E. 603); Penal Code (1910), § 1010; Savage v. State, 28 Ga. App. 543 (112 S. E. 523); Harris v. State, 28 Ga. App. 463 (111 S. E. 686); McCarty v. State, 28 Ga. App. 625 (113 S. E. 31); Vaughn v. State, 29 Ga. App. 388 (115 S. E. 670); Toney v. State, 30 Ga. App. 61 (116 S. E. 550).

Judgment reversed.

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


author: Bloodworth, J.

text:
    16261.
    THOMAS v. THE STATE.
    There was no abuse of discretion in overruling the ground of the motion for a new trial based on alleged newly discovered evidence.
    In the charge of the court on conspiracy there was no error that required a new trial.
    It was not error to give in charge to the jury .section 1013 of the Penal Code.
    The charge of the court as to recent possession of stolen property was authorized by evidence showing such possession by one of the alleged conspirators.
    Decided April 14, 1925.
    Indictment for burglary; from Pulton superior court—Judge Humphries. December 24, 1924.

      Branch & Howard, J. Waller LeOra/w, for plaintiff in error.

      John A. Boylcin, solicitor-general, Ralph H. Pharr, contra.
   Bloodworth, J.

1. “The discretion of the trial judge in overruling a motion for a new trial based on alleged newly discovered evidence of an impeaching character contradicted by counter-affidavits will not be controlled by this court.” Reese v. State, 30 Ga. App. 19 (116 S. E. 663). This ruling disposes of the ground of the motion based on alleged newly discovered evidence.

2. The evidence authorized a charge on conspiracy. Bolton v. State, 21 Ga. App. 184, 187, 188 (94 S. E. 95); Davis v. State, 114 Ga. 107 (3) (39 S. E. 906). When read in connection with the remainder of the charge of the court and in the light of all the evidence in the case, the instructions complained of in the 5th and 6th grounds of the motion for a new trial contain no error requiring a new trial.

3. Where the.court properly instructs the jury on circumstantial evidence, and that “moral and reasonable certainty is all that can be expected in legal investigation,” it is not error immediately thereafter to instruct them, in the language of section 1013 of the Penal Code, that whether dependent upon positive or circumstantial evidence, the true question in criminal cases is not whether it be possible that the conclusion at which the testimony points may be false, but whether there is sufficient testimony to satisfy the mind and conscience beyond a reasonable doubt.

4. As stated above, the evidence authorized a charge on conspiracy. Whether the conspiracy was in fact established was a question for the jury. The evidence shows that the three alleged conspirators left Atlanta on the same morning, each driving a Ford automobile, and that they carried these ears to Jacksonville, where they were arrested. There was enough evidence tending prima facie to establish a conspiracy to allow in evidence the acts of the alleged conspirators, the jury to give this evidence such weight as they saw fit in the event the conspiracy was established. The evidence showing that one of the three alleged conspirators drove the stolen car from Atlanta to Jacksonville, and was in possession of it at that place two days after leaving Atlanta, the evidence authorized a charge on the right of the jury to convict on the recent possession of stolen property “unless the defendant makes explanation of his possession of such stolen property consistent with his innocence.” It is admitted in the brief of counsel for plaintiff in error that “the court’s charge on this subject was a correct statement of abstract law, and that it would have been an appropriate charge in this case if there had been any specific evidence before the jury that the defendant had been found to be in possession of the stolen property.”

5. There was some evidence to support the verdict.

Judgment affirmed.

Broyles, 0. ,7., and Tjuke, J., concur.


text:
    16263.
    MIXON v. THE STATE.
    The objection that an intimation as to what had been proved was contained in the instructions set out in special grounds 1 and 2 of the ' motion for a new trial is without merit.
    The instruction set out in the next ground was not erroneous because of failure to give an additional instruction not requested. See Grant v. Stale, 152 Ga. 252 (109 S. E. 502), and cases cited.
    Decided April 14, 1925.
    Accusation of possession of liquor; from city court of Sjdvania— Judge Evans. January 13, 1935.

      A. M. Deal, II. A. Boykin, for plaintiff, in error.

      II. S. White, solicitor, contra.
   Luke, J.

Mixon was convicted of the offense of possessing intoxicating liquor. He contends in his motion for a new trial (a) that the evidence did not authorize his conviction, and (&) that the court erred in charging the jury as follows: (1) “It is contended on the part of the defendant in this case that he did not have in his possession, custody, or control any intoxicating liquors described in this accusation, and that the suit-case taken by the officers, which contained said liquor, was not his, and was not in his possession, and that no one saw him place said suit-case in the building of Mr. W. H. Parker.” (3) “I charge you that you may consider these circumstances in arriving at what the truth of this ease is.” (3) “In determining what the truth of this case is, it will be your duty to take into consideration all the facts and circumstances of the case, the witnesses’ manner of testifying, the other means and opportunities of knowing the facts to which they testify, their interest or want of interest, and also their personal credibility so far as it may appear upon the trial of this case;” the movant contending that the “vice of this charge” was “that, in addition to the above statement, the court should have charged that the jury had the right to consider the state of the feeling of the witnesses towards the defendant, or any other fact in connection with said trial that would assist the jury in arriving at the truthfulness of the transaction; and the failure of the court to so charge was error.” -

For no reason assigned was the charge of the court, when read in its entirety, erroneous. The evidence amply authorized the defendant’s conviction, and the conviction has the approval of the trial judge. The court properly overruled the motion for a new trial.

Judgment affirmed.

Broyles, C. J., and Bloodworlh, J., concur.


text:
    16286.
    McDANIEL v. THE STATE.
    Tn view of the evidence and of the defendant’s statement at the trial, in which he admitted that he made the alleged intoxicating liquor, the only issue of fact for the jury being whether the alleged beer was intoxicating, the court did not err in charging the jury that if, after due consideration of the evidence, they believed that “the substance in question was alcoholic and in possession of the defendant,” they would be authorized to find him guilty of the offense of manufacturing such liquor.
    Decided April 14, 1925.
    Indictment for malting liquor; from Barrow superior court-judge Russell. December 20, 1924.

      G. A. Johns, for plaintiff in error.

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

1. McDaniel was placed upon trial on an indictment charging him with the offense of manufacturing intoxicating liquors. The evidence for the State showed that the arresting officers found several barrels of intoxicating malt beer upon the defendant’s premises and in his stable. No evidence was introduced by the defendant, but he made a statement to the jury, in which he admitted that he had made the stuff found by the officers, but he denied that it was beer or that it was intoxicating, stating that ij; was made out of “shorts and water,” and that he had fixed it up for hog feed. Under these facts, the only question for the determination of the jury was whether the alleged beer was intoxicating, and, therefore, the following charge of the court was not reversible error: “You are instructed that before the defendant can be convicted of the offense charged, you will have to believe beyond a reasonable doubt that the substance was alcoholic and in the possession of the defendant. If after due consideration of the evidence you believe that the substance in question was alcoholic and in possession of the defendant, then you would be authorized to find the defendant guilty-; otherwise, you would not.”

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

Judgment affirmed.

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


text:
    15808.
    WAYNESBORO PLANING MILL v. HARGROVE.
    The rule as to preponderance of evidence having been given in charge to the jury, and there being no request for additional instructions on that subject, it is not ground for a new trial that the court failed to qualify the expression “should you believe from the testimony in this case,” by using instead the words “should you believe from a preponderance of testimony,” or words of similar import.
    In the light of the charge as a whole, the slight inaccuracies, in it do not require a new trial.
    The burden of showing that the plaintiff, who was suing for wrongful discharge from employment, could by reasonable diligence have lessened the damage, by procuring other employment, was upon the defendant; and the evidence was not sufficient to show this.
    The verdict for the plaintiff was excessive to the extent of $30; and if he will write off from the judgment this excess-and all interest prior to judgment, the judgment will stand affirmed; otherwise a new trial is ordered.
    Decided April 15, 1925.
    Breach of contract; from city court of Waynesboro—Judge W. H. Davis. July 2, 1924.

      B. F. Walker, G. O. Andretvs, F. S. Burney, for plaintiff in error.

      E. V. Heath, contra.
   Bloodworth, J.

1. While there are slight inaccuracies of expression in some of the excerpts from the charge of which complaint is made in the motion for a new trial, these inaccuracies, in the light of the entire charge, arc not such as likely misled the jury and caused them to return a verdict different from what would have been found had not these inaccuracies appeared. The excerpt from the charge embraced in the first special ground of the motion for a new trial is not subject to the exceptions taken. It wjis not necessary to .qualify the expression, “Should you believe from the testimonjr in this • case,” by using, instead of the words “the testimony,” the words, “a preponderance of testimony,” or words of similar import, as contended in that ground. The court had correctly charged on the rule as to preponderance of evidence, and there was no request for additional instructions on the subject. See Georgia, Florida &c. Ry. Co. v. Summer, 133 Ga. 134 (1) (65 S. E. 381); Willoughby v. Martin, 6 Ga. App. 154 (64 S. E. 490), and cit. As to the other omission alleged in the same ground, it appears from the copy of the charge of the court, approved by the judge and set up as a part of the record, that “the court actually gave in charge that which it is alleged was erroneously omitted.” Harris v. Vallee, 29 Ga. App. 770 (9) (116 S. E. 643).

2. This is a case of alleged wrongful discharge from employment. In Ga. Fla. & Ala. Ry. Co. v. Parsons, 12 Ga. App. 180 (3) (76 S. E. 1063), this court held: “In an action for wrongful discharge from employment, the measure of damages is the, full loss which the discharged employee sustained by reason of the breach of the contract of employment. Á diminution is to be allowed, however, for any profit which he might, by the exercise of due diligence, have received by reason of his having been relieved from the duties of his employment. The burden of proof that such profit was made, or by reasonable diligence could have been made, is upon the defendant.” The’5th ground of the motion for a new trial is as follows: “Because the plaintiff testified he could have procured other employment.” Granting that this ground is sufficiently specific to be considered by this court, under the foregoing ruling the burden is upon the defendant to show that by reasonable diligence the plaintiff could have obtained other employment. We do not think this burden was carried by the defendant, although the plaintiff testified that, several years before and in another county, a railway company, when he left its employ, told him that if at any time he wanted a job they would be glad to give it to him; nor by the fact that the plaintiff was offered a job at $175 per month with said railroad company “while the strike was on,” without showing when the strike occurred, and that this offer was made after he was discharged by the defendant and before the expiration of the twelve months for which he was employed.

3. Under the contract sued on the plaintiff was entitled to $100 per month from August 7 to November 7, and $125 per month for the other nine months of the contract year. The record shows that he “worked until Oct. 16th” and was paid up to that, time. The jury returned the following verdict: “We, the jury, find for the plaintiff the sum of nine hundred twenty-seven and no/100 (927.00) dollars, with interest at seven per cent, from October 7th, 1922.” It is impossible to tell from the record exactly what calculation the jury made to reach the conclusion that there was due the plaintiff the principal sum of $927. As we calculate it, without interest, the amount due from October 16th to the end of the contract year is $1195. After his dismissal and prior to the end. of tlie year for which, he was employed, the plain till earned from other sources $298. Deduction of this amount from the $1195 shows the balance due the plaintiff to be $897. The verdict is for $927 principal. It is therefore excessive by $30. Moreover, the interest was not sued for; yet in their verdict the jury included interest and that too from a time before the first installment of the principal became due. This was error even though the judge instructed the jury that in rendering their verdict they should state the amount of the principal “with interest at the rate of seven per cent, per annum from-the date that you find that (the principal) sum became due.” McConnell v. Selph, 30 Ga. App. 795 (119 S. E. 438), and cases cited.

If the plaintiff will write off from the judgment this excess of $30 principal, and all interest prior to judgment, the judgment is affirmed; otherwise a new trial is ordered.

Judgment affirmed on condition.

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


author: Beoyles, C. J.

text:
    15901.
    Koppe & Steinichen v. Rylander et al.

   Beoyles, C. J.

1. In a suit by a materialman, against tlie owner of real estate, to recover the amount of his claim of lien for furnishing material for the improvement of the real estate (the material being furnished through a contractor, or some other person than the owner of the real estate), where it appears, from undisputed evidence, that the owner received all the material charged for in the suit, had used the greater portion of it in the improvement of the real estate, had not returned any of it or made any complaint about it to the materialman, and had pond the contractor, or other person al whose instance the material was furnished, more than the amount sued for by the materialman, the owner of the real estate is estopped from setting up, as a defense to the action, that the materialman had not substantially complied with his contract. Especially is this true where upon the first trial of the action (the trial now under review being the second one) tlie sole defense interposed by the owner of the real estate was that the materialman was not entitled to recover the amount of his lien for the reason that the person at whose instance the material was furnished was not a contractor within the meaning of section 3352 of the Civil Code of 1910. See, in this connection, Henderson Elevator Co. v. North Georgia Milling Co., 126 Ga. 279 (3, 5) (55 S. E. 50); Acme Brewing Co. v. Rahr Sons Co., 10 Ga. App. 564 (73 S. E. 955); Jones v. Traynham, 20 Ga. App. 349 (1) (93 S. E. 154); Howell v. Cordray, 22 Ga. App. 195 (95 S. E. 762); McCullough v. Armstrong, 118 Ga. 424 (2) (45 S. E. 379).

Decided April 15, 1925.

Rehearing denied May 14, 1925.

Lien foreclosure; from city court of Amerieus—Judge Harper. August 16, 1924.

Certiorari was granted by the Supreme Court.

Augusiine Sams, Wallis & Fori, for plaintiffs.

IF. W. Dylcas, B. L. Maynard, for defendants.

2. Under tlie above-stated ruling' (conceding that tlie amendment to the answer, setting up that the materialman had not substantially eomplied with Iiis contract, was properly allowed, since all the material facts of the case, as stated above, wore not disclosed by the pleadings), the court erred in admitting, over the timely and appropriate objections of the plaintiffs, evidence showing or tending to show that tlie plaintiffs had not substantially complied with their contract. &ee grounds 11 to 21 (inclusive) of tlie amendment to the motion for a new trial. The court erred also in refusing to give the requested charge upon the law of estoppel, set forth in ground 2 of the amendment to the motion for a new trial.

3. The errors pointed out in the immediately preceding paragraph make another trial of the case necessary.

Judgment reversed.

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


text:
    15985.
    SHADRICK v. TOMS.
    1. On the trial of tlie issue raised by an affidavit of illegality the question of title to the property levied on is not involved, and neither side can inject this issue into the case.
    2. The general rule is that a defendant can not set off an item of damage arising ex delicto against a cause of action arising ex contractu.
    3. An answer which is designed to set up the defense of recoupment and which does not, by sufficient and appropriate allegations of fact, show that the damages therein claimed were occasioned by reason of a breach by the plaintiff of the contract sued on, should be stricken.
    4. The court properly dismissed .the “affidavit of illegality and plea of recoupment” filed in this ease.
    Decided April 15, 1925.
    Lien foreclosure; from Quitman superior court—Judge■ Yeomans. September 8, 1924.
    Under the provisions of the act approved August 15, 1921 (Ga. L. 1921, p. 114), Toms foreclosed a contract in which title was reserved to certain property to secure a debt. An execution was issued and levied on the property named in the contract; the entry of the sheriff showing that it was levied on as the property of the defendant Shadrick. The defendant hied what he termed his “affidavit of illegality and plea of recoupment,” but which was nothing more than a plea of recoupment. In this plea he sought to recoup damages which he alleged were caused by the plaintiff by forcibly and without his knowledge and consent taking and carrying away a portion of the property which he bought from the plaintiff, and which was a part of the consideration of the contract foreclosed. Upon the trial of the case 'the presiding judge passed the following order: “The demurrer of plaintiff to defendant’s plea of illegality coming on to be heard, and counsel for plaintiff making the oral motion to dismiss said plea of illegality, for the reason that the said plea fails to show that said execution was illegally proceeding against property of said defendant, and, the attorney of the defendant, in open court, in his place as such attorney, stating that the property- levied upon was not at the time of levy, nor now, the property of the Pine Lumber Company, and that he has no interest .therein, the said motion is therefore sustained and said plea of illegality is hereby dismissed.” Defendant excepted.

      J. B. McDonald, for plaintiff in error.
   Bloodworti-i, J.

(After stating the foregoing facts.) In Morris-Bell Co. v. Wall, 32 Ga. App. 774 (124 S. E. 814), the headnotes are as follows: “On the trial of the issue raised by an affidavit of illegality the question of title to the property levied on is not involved, and neither side can inject this issue into the case. An affidavit of illegality in which the defendant in execution avers that the property levied on is his property is not subject to dismissal on the ground that his testimony at the trial shows it to be the property of another, and that therefore the court has no jurisdiction of the case.” Under these rulings the court erred in dismissing the affidavit of illegality on the ground stated in the order of the judge which is copied in the foregoing statement of facts. Had the statement in the affidavit of illegality been the same as that in the order dismissing it, then, under the ruling in State v. Sallade, 111 Ga. 700 (36 S. E. 922), the affidavit would have been dismissed on this ground. But in this case, as in the Morris-Bell case, supra, the property was levied upon as the property of the defendant, the plaintiff was attempting to subject it as such, and, as was said in that ease, “it does not now lie in the mouth of the plaintiff to deny that the levy was made on the property of the defendant.”

However, although the court gave a wrong reason for dismissing the affidavit of illegality, the order dismissing it was not erroneous. “A judgment will be affirmed if correct upon any ground, even though an erroneous reason should be assigned.” Standard Gas Products Co. v. Vismor, 31 Ga. App. 419 (6) (121 S. E. 854), and cases cited. The plaintiff was foreclosing a contract in which title was reserved to secure a debt, and this was a proceeding ex contractu. The defense is based upon a tort not growing out of the failure of the plaintiff to comply with any of his cross-obligations arising under the contract. In Georgia Lumber Co. v. Johnson-Battle Lumber Co., 31 Ga. App. 290 (120 S. E. 640), this court held that “The court erred in overruling the demurrer attacking a portion of the plea, upon the ground that the defendant sought therein to set off an item of damage arising ex delicto against a cause of action arising ex contractu.” The principle here announced is applicable to this.case. The Supreme Court in White v. Blitch, 112 Ga. 775 (38 S. E. 80), held: “It is proper to strike paragraphs of an answer designed to set up the defense of recoupment, when they do not, by sufficient and appropriate allegations of fact, show that the damages therein claimed were occasioned by. reason of a breach by the plaintiff of the contract sued on.” Under this ruling the plea of recoupment should have been stricken, as it does not show that “the damages therein claimed were occasioned by reason of a breach by the plaintiff of the contract sued on.” Moreover, even where a plea of recoupment is allowed on equitable grounds, because the plaintiff is a nonresident or insolvent, the nonresidence or insolvency must be pleaded absolutely and unequivocally. This was not done in this case.

Judgment affirmed.

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


author: Broyles, C. J.

text:
    16140.
    Board of School Commissioners of Hogansville v. Tuggle.
   Broyles, C. J.

1. In the light of the facts of the case and the charge of the court, the refusal to give the requested charge was not error.

2. It is well settled by repeated rulings of the Supreme Court and of this court that where evidence is objected to, and the court admits the evidence temporarily, and no subsequent ‘objection to it is made, or no motion made to rule it out, the admission of the evidence furnishes no ground for a motion for a new trial. This ruling disposes of the second and third grounds of the amendment to the motion for a new tidal.

Decided April 15, 1925.

Complaint; from Troup superior court—Judge Roop. October 28, 1924.

M. U. Mooiy, for plaintiffs in 'error.

IF. T. Tuggle, contra.

3. The testimony the admission of which is complained of in the last ground of the motion for a new trial was admissible under the pleadings and the other facts of the case, and the court properly so held.

4. The general grounds of the motion for a new trial were expressly abandoned in the brief of counsel for the plaintiff in error.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    16143.
    BROCK CANDY COMPANY v. CRATON.
    The writing in which Craton stated to the plaintiff that he would be responsible for Austin “up to $500, but not over that amount,” and would be glad if the plaintiff “would extend to him that amount of credit,” was a contract of .suretyship and not of guaranty; and an action was maintainable against Craton and Austin jointly for a balance due of $500 on the price of goods sold to Austin in pursuance of this writing.
    The extension of credit to the principal in excess of the sum named in the writing did not release the surety, the limit thus named being merely as to the surety’s liability, and not as to the credit to be extended.
    The petition was not subject to any ground of the demurrer interposed by Craton, and the court erred in sustaining the demurrer and dismissing the case as to him.
    Decided April 15, 1925.
    Complaint; from city court of Floyd county—Judge Bale. December 6, 1924.
    J. L. Craton and W. S. Austin were jointly sued by the Brock Candy Company for the purchase-price of goods sold by it to Austin. Craton was sued as a codefendant by reason of the following written agreement (which the petition, in one place, calls a “guarantee,” and in another place “a contract of suretyship”) executed by him and delivered to the plaintiff: “Gentlemen: I will be responsible for W. S. Austin' up to $500.00, but not over that amount. I would be glad if you would extend to him that amount of credit. Very respectfully, J. L. Craton.”

      Tlie petition alleged, “that in pursuance of said contract of suretyship on the part of the said John L. Craton, your petitioner did extend credit, upon the face thereof, to the said AY. tí. Austin, and from time to time did sell and deliver to the said AY. S. Austin goods, wares, and merchandise in the total value of $1,634.73, against which petitioner has received credits from the said AY. S. Austin of the sum of $1,109.73, leaving a balance due your petitioner upon said account of $525, which said account is just, due, and unpaid.” Judgment was asked against the two defendants for $500. Craton demurred to the petition, on various grounds; the court sustained the demurrer and dismissed the petition as to him, and the plaintiff excepted.

      Denny & Wright, for plaintiff.

      James Maddox, for defendant.
   Broyles, C. J.

(After setting forth the foregoing stated facts.) In our opinion the petition was not subject to any ground of the demurrer interposed. The extension of credit by the plaintiff to Austin in excess-of the sum of $500 did not release Craton. “If one assumes to pay a definite amount of the indebtedness of another, it is none of his concern whether the debt thus assumed is greater or less than the actual indebtedness.” Oglesby v. South Georgia Grocery Co., 18 Ga. App. 402 (5) (89 S. E. 436). See also Scarratt v. Cook Brewing Co., 117 Ga. 181 (1) (43 S. E. 413).

AYe think the contract of Craton with the plaintiff was one of suretyship and not of guaranty, and therefore the action could be maintained against both defendants jointly. There was no benefit flowing to Craton, and he was not primarily, but only secondarily, liable to the plaintiff. A contract of suretyship “differs from a guaranty in this, that the consideration of the latter is a benefit flowing to the guarantor.” Civil Code (1910), § 3538. “A fundamental distinction between a guaranty and suretyship is that in a contract of guaranty the person obligating himself to pay the debt of another is primarily, and not merely secondarily, liable for its payment.” Watkins Medical Co. v. Marbach, 20 Ga. App. 691 (1 b) (93 S. E. 270). See also Wright v. Shorter, 56 Ga. 72, 77.

AYe think also that the contract of suretyship did not limit the plaintiff to give credit for only $500 to Austin, although it did limit the surety’s liability to that amount. “AYliere an absolute promise is made to become responsible for a certain amount, with no limitation as to time, and there is nothing in the circumstances surrounding the execution of the contract to evince a contrary intention, it will be presumed that the promise was to continue until revoked, and the promisor will bo held liable to the cxteiit of his guaranty notwithstanding the principal may have, during the existence of the contract, contracted debts to an amount equal to or greater than the sum named in the guaranty.” Manry v. Waxelbaum Co., 108 Ga. 14, 21 (33 S. E. 701). There was no merit in any ground of the demurrer, and the court erred in sustaining the demurrer and in dismissing the case as to J. L. Craton.

Judgment reversed.

Lulce aúd Bloodworth, JJ., concur.


author: Beotles, C. J.

text:
    16148, 16161.
    Bowers v. Louisville & Nashville Railroad Co. et al.; and vice versa.

    Decided April 15, 1925.
   Beotles, C. J.

1. A servant assumes tlie ordinary risks of his employment, and is bound to exercise liis own skill and diligence to protect himself. In a suit by a servant against his master for personal injuries arising from the negligence of the master in furnishing him alleged defective and unsafe machinery, the plaintiff can not recover unless it appears that the master knew, or ought to have known, of the defects or danger in the machinery supplied, and unless it also appears that the servant injured did not know, and had not equal means of knowing such fact, and by the exercise of ordinary care could not have knoim thereof. Civil Code (1910), § 3131.

2. In the instant ease it does not appear from the petition that the plaintiff servant did not have equal means with his master of knowing of the defects and danger of the machinery supplied. In fact, the petition, construed (as it must be) most strongly against the plaintiffs, shows that the danger wa,s as obvious to the plaintiff as it was to the master; and, this being true, the plaintiff was not entitled to recover, notwithstanding he was assured by an agent of the master (whose duty it was to inspect and repair the machinery used by the plaintiff) that he could safely rise the defective machinery, and that he (the plaintiff) used it, relying on such assurance and on the “superior knowledge” of the agent. See, in this connection, Niblett v. LaGrange Mills, 18 Ga. App. 173 (1) (88 S. E. 1009), and citations; Williams v. Ga. S. & F. Ry. Co., 31 Ga. App. 688 (1) (121 S. E. 700).

3. Neither count of the petition set out a cause of action, and the petition was properly dismissed on general demurrer.

4. In view of the above-stated ruling, it is unnecessary to consider the questions raised in the cross-bill of exceptions.

Judgment on main bill of exceptions affirmed; cross-bill dismissed.

Luke and Bloodworth, JJ., concur.

Action for damages; from city court of Madison—Judge Lambert. December 5, 1924.

S. Holderness, for plaintiff.

Miles W. Lewis, Albert G. Foster, for defendants.


text:
    16151.
    Stern v. Howell.
   Broyles, C. J.

1. “Payments of taxes or other claims, made through ignorance of the law, or where the facts are all known, and there is no misplaced confidence and no artifice, deception, or fraudulent practice used by the other party, are deemed voluntary, and can not be recovered back, unless made under an urgent- and immediate necessity therefor, or to release person or property from detention, or to prevent an immediate seizure of person or property.” Civil Code (1910), § 4317.

2. Even where money is paid under a mistake of fact, or in ignorance of facts, it can not be recovered, unless the circumstances are such that the party receiving it ought not, in equity and good conscience, to be allowed to retain it. Atlanta Telephone & Telegraph Co. v. Fain, 16 Ga. App. 475 (2) (85 S. E. 791), and citations.

(a) The expression, “in equity and good conscience,” as above used, refers only to the acts and intentions of the person receiving the money as affecting the other party to the transaction. If lie has acted in good faith and in good conscience with the person paying the money, he is entitled to retain it, even if his actions and intentions may not have been in good faith and in good conscience as regards other persons not connected with the transaction.

3.. Where the only witness introduced to prove a case as laid was the plaintiff himself, whose testimony was so self-contradictory, and in some material respects so improbable, as to require that his entire testimony be construed in the light most unfavorable to him; and there being- no other evidence tending to establish his right to recover, and the version of his testimony most unfavorable to his cause showing that the verdict should be against him, and the evidence of the defendant, which was entirely consistent with that version, establishing a complete defense, the verdict for the plaintiff was unauthorized. Southern Cotton Oil Co. v. Shields, 23 Ga. App. 476, 478 (98 S. E. 408), and citations. Under this ruling, the plaintiff’s self-contradictory testimony, properly construed most strongly against him, together with the other evidence in the case, demanded a finding that he had not made the payment in question through ignorance of the facts of the transaction, but that he had voluntarily made it after knowledge of the facts.

4. In the light of all the facts of the case, the defendant, in equity and good conscience, was entitled to retain the money paid him, and the plaintiff, in equity and good conscience, was not entitled to recover it. It follows that a verdict for the defendant was demanded, and that the verdict in favor of the plaintiff was contrary to law and the evidence, and that the court erred in refusing the grant of a new trial.

Decided April 15, 1925.

Action for money had and received; from Clarke superior court —Judge Fortson. November 12, 1924.

Green & Michael, for plaintiff in error.

T. W. Rucker, Lamar C. Rucker, Gerdine Lumpkin, Carlisle Cobb, contra.

Judgment reversed.

Luke and Bloodioorth, JJ., concur.


text:
    16156.
    Woodall v. Hartford Fire Insurance Company.
    Decided April 15, 1925.
    Rehearing denied May 14, 1925.
    Complaint; from Lamar superior court—Judge Persons. November 22, 1924.

      G. J. Lesler, Cleveland & Goodrich, for plaintiff.

      Smith, Hammond & Smith, for defendant.
   Broyles, C. J.

1. Where it is stipulated in a policy of fire-insurance that no action thereon shall be sustainable against the insurance company unless commenced within twelve months next after the occurrence of the loss, an action brought after the lapse of that period is barred, although the petition shows that the suit is a renewal of a previous action which wás commenced within the time limited, and that the second suit was brought within six months after the first one was nonsuited. Melson v. Phenix Insurance Co., 97 Ga. 722.

(a) Such a petition should be dismissed on general demurrer. The ruling in Smith v. Central of Georgia Ry. Co., 146 Ga. 59, that where a petition shows upon its face that a suit is barred by the statute of limitations, the defendant can not take advantage of the statute by demurring unless the demurrer expressly sets up á reliance on the statute, is not applicable to such a petition as is referred to in the Melson case, supra.

2.- Under the above rulings the amended petition in the instant ease was subject to the general demurrer interposed and the court properly so held.

Judgment affirmed.

Luke and Bloodworth, JJ., eoneur.


author: Broyles, O. J.

text:
    16160.
    Partee v. Peters.
   Broyles, O. J.

1. A petition for certiorari which contains no proper assignment of error is void. Citizens Banking Co. v. Paris, 119 Ga. 517, 518 (46 S. E. 638).

(a) Such a petition should not be sanctioned; but, if sanctioned, should be dismissed on tlie hearing. The same result is reached, however, where the petition is overruled. See, in this connection, Flynn v. City of East Point, 18 Ga. App. 729 (90 S. E. 374), and citations.

Decided April 15, 1925.

Certiorari; from Walton superior court—Judge Fortson. November 21, 1924.

J. II. Fellcer, for plaintiff in error.

2. In the instant ease the only attempted assignment of error in the petition for certiorari was in these words: “There being no further evidence, the court entered up judgment' in favor of the plaintiff against defendant for $5.52 besides court costs of suit. Petitioner avers that the said court erred in entering up said judgment.” The petition, therefore, did not comply with section 5183 of the Civil Code of 1910, which requires that the plaintiff in certiorari “shall plainly and distinctly set forth the errors complained of,” and this court will not reverse the judgment overruling the certiorari. Harrell v. City of Quitman, 17 Ga. App. 299 (86 S. E. 662), and citations.

Judgment affirmed.

Luke and Bloodioorth, JJ., concur.


text:
    16179.
    Salmon v. The State.
    Decided April 15, 1925.
    Accusation of possession of liquor; from city court of Floyd county—Judge Bale. December 30, 1924.
    N. II. Salmon was convicted on an accusation charging him with having possession and control of intoxicating liquor. According to the evidence for the State, an automobile occupied by the defendant and others and driven by the defendant, at night, passed a party of officers, who ran after it, and it turned into a garden and ran against a barbed-wire fence. One of the officers testified: “When it hit the fence Mr. Salmon tried to run through the fence, and then tried to back off, and then, when he saw lie could not get away, he threw two cans of whisky out; one went this way and one went to the side of the car. I saw them come out, square gallon cans. . . I could not tell whether it was the man who was driving or not who threw the whisky out. I could not tell which one it was. . . It was corn whisky. . . Buck Salmon [the defendant] was driving the car and Dick Salmon was on the right side. I did not see Dick Salmon make any motion or move. . . There were no side curtains. . . One can came out and one followed quickly as they could turn them loose. . . There were two gallon cans that came out of the car, and two were picked up.” This was the only witness who testified as to seeing the cans thrown out of the car. It was testified that a hole was punched in one of the cans and liquor was running out of it. No liquor was found in the car. Buck and Dick said that the liquor found was not their liquor. There was a prize fight that night, and Buck said he wanted some liquor and wanted to get to the prize fight. The defendant in his statement at the trial said: “We didn’t have any liquor in that car. We simply went there to get liquor, to drink it over at the prize fight. . . We didn’t throw any from the car.” Witnesses for the defendant testified to the same effect.
   Broyles, C. J.

The evidence tending to connect the accused with the offense charged was wholly circumstantial, and, therefore, the failure of the court to instruct the jury upon the law of circumstantial evidence was harmful error, and another hearing of the case is required.

(a) The other assignments of error are not passed upon, as the alleged errors are not likely to recur upon another trial.

Judgment reversed.

Luke and Bloodioorth, JJ., concur.

Porter & Meiane, for plaintiff in error.

Alec Harris, solicitor, contra.


text:
    16180.
    Black v. Winston.
    Decided April 15, 1925.
    Certiorari; from Fulton superior court—Judge Humphries. December 11, 1924.

      T. J. Lewis, J. D. Steivart, for plaintiff in error.

      Kenclrich L. Scott, McDaniel & Neely, contra.
   Broyles, O. J.

1. Under all the facts of the case, as disclosed by the record, the overruling of the certiorari was not error.

2. This court not being satisfied that the writ of error was prosecuted for the purpose of delay only, the request of the defendant in error for the award of damages is denied.

Judgment affirmed,

hulee and Bloodworth, JJ., concur.


text:
    16187.
    Ocean Steamship Company of Savannah v. Bassett.
    Decided April 15, 1925.
   Broyles, O. J.

The overruling of the demurrers to the petition as amended was not error. The petition as amended was not subject to any of the demurrers interposed and the court properly so held.

Judgment, affirmed.

hulee and Bloodworth, JJ., concur.

Action for damages; from Chatham superior court—Judge Mel-drim. December 2, 1924.

According to the allegations of the petition as amended; the plaintiff, a married woman, was a passenger on a steamship of the defendant, and when asleep in her cabin at night was aroused by loud voices in the corridor, and, without her permission and against her will, the door of her cabin was unlocked from outside, and an officer of the defendant, who was under the influence of liquor, forcibly entered her cabin, and another man under the influence of liquor stated that this officer would pass the night there. The officer remained in her cabin a short time, but, at her repeated requests and upon her threats to summon aid, he Anally left the cabin. By reason of this forcible and unlawful entry and trespass she “suffered a profound nervous shock, and in consequence thereof and from fear of violence she passed a sleepless night.” When asleep in her cabin the next afternoon she was again awakened by a disturbance in the corridor, and, by reason of her highly nervous state and under the influence of fear occasioned by the acts stated above, the plaintiff, in order to protect herself from further intrusion and possible violence, leaned from her upper berth to secure the cabin door, and in so doing was thrown and fell with her full weight to the floor and suffered injuries described. It is alleged that the defendant permitted intoxicating liquors to be consumed on the ship by various persons, including officers and employees, and in such quantities as to cause disorder and confusion, and that it was negligent in so doing, and in failing to maintain the discipline necessary for the safety and protection of the plaintiff and other passengers; that the. defendant was negligent in permitting the said trespass and invasion of the privacy of her cabin and in failing to protect her therefrom, in placing on her the burden of extraordinary precaution in furtherance of her right of privacy and security; in permitting the said officer to have in his possession a key to her cabin; in permitting a fellow passenger to have in his possession such a key; and in permitting the further disturbance in the corridor, because of which the plaintiff fell and was injured as stated. It is alleged that for five years before the injury (during which the plaintiff was the wife of Walter L. Bassett, of St. Petersburg, Florida) she was actively engaged as a beauty specialist', and owned and conducted an establishment for Carrying on that business, in St; Petersburg, Florida, “upon her own sole and. separate account;” that ever since the injury she has been and she will be permanently pro vented from attending to her usual vocation, at which she was earning an income of $6,000 a year, and her earning capacity has been permanently impaired and lost. It is alleged that she has necessarily paid and has become liable to pay expenses for medical and surgical attendance and for nursing, medicines, hospital expenses and board therein $1,447.75 to “the present day,” and that she will hereafter necessarily incur further expenses of a similar character; and that by reason of the premises she has been damaged in the sum of $100,000. The petition is in two counts, the second of which omits the allegations as to the injury by the fall from the berth.

The grounds of demurrer are sufficiently indicated in the opinion of the judge of the superior court, which is as follows:

“This is a case of a passenger suing a common carrier for damages arising out of the alleged negligence of the defendant. Bearing in mind that the carrier is bound to use extraordinary diligence, on behalf of himself and his agents, to protect the lives and persons of his passengers, and that negligence is peculiarly a question for the jury, I am constrained to overrule the demurrers, both general and special, that have been filed in this case; and they are hereby overruled.

“I do not deem it necessary to discuss severally the numerous grounds of demurrer, as certain of them are removed by amendment, and the others, except as hereinafter stated, do not require special consideration. But the 3d and 5th grounds of the original demurrer . . and the 10th ground of the amended demurrer . . will be considered. This 10th ground is the same in substance as the 4th and 8th grounds of the third amended demurrer. . . It is contended in the 3d ground that ‘much confusion and disorder’ existing at and around the ship did not Constitute actionable negligence. They do not of themselves constitute actionable negligence, but, however lawful they might be, nevertheless a lawful act may be considered along with other acts as constituting negligence. Mayor &c. of Milledgeville v. Holloway, 32 Ga. App. 734 (124 S. E. 802), and cases cited. The plaintiff avers that alcoholic liquors were consumed' by officers and employees of the defendant, that necessary discipline was not maintained, and that confusion and disorder prevailed. The clear intendment of the pleader is that these were the conditions that surrounded and led up to the alleged invasion of her stateroom.

“The 5th ground deals with proximate cause. It is very difficult to determiné, in many cases, which is the proximate cause that produced a certain effect. Generally the cause is the resultant of [different?] forces, and is usually a question for the jury, except where it is perfectly evident that the alleged cause was not the proximate cause, in which event the court can and should so decide. But I do not think that under the facts so pleaded I should decide, as a matter of law, that the injury did not result from the alleged negligent acts.

“The 10th ground of the amended demurrer deals with the right of the plaintiff, a married woman, to recover $1,477.75, expenses for medical and surgical attendance, nursing, medicines, hospital expenses and board therein, and further deals with the right to recover for the loss of her separate earnings. The petition avers that for five years prior to the injury she had been actively engaged in business, owning and conducting an establishment upon her own sole and separate account. As to the right of the wife to make a contract to pay her expenses I have no doubt, because, since the act of 1866, a married woman is a feme sole and can make any contract not prohibited by law. As to her recovery for her loss of earnings in her business I am not so clear. Assume that the husband has the legal right to the earnings of his wile, yet he can consent expressly or impliedly for her to have her own earnings. 124 Ga. 460; 112 Ga. 842. I am quite clear that a jury would be authorized to find that where a woman conducted a business- for five years on her Awn sole and separate account,’ the consent of the husband might be implied. At all events, I do not think that I should as a matter of law, on demurrer, hold that there has been no implied consent of the husband.”

H. Wiley Johnson, for plaintiff in error.

Earl M. Fleetwood, W. IF. Gordon, contra.


text:
    16231.
    Jackson v. The State.
    Decided April 15, 1925.
    Conviction of larceny of automobile; from Fulton superior court —Judge Humphries. December 27, 1924.

      II. A. Allen, William Schley Howard, for plaintiff in error.

      John A. Boylcin, solicitor-general, Ralph H. Pharr, contra.
   Luke, J.

“The offense charged in the indictment being simple larceny, and the guilt of the accused being wholly dependent upon inference arising from possession of the article alleged to have been stolen, and this possession being shown by uncontradieted and unimpeached testimony to be consistent with his innocence of the offense charged, . . the conviction of the accused was unauthorized.” Slaughter v. State, 24 Ga. App. 428 (100 S. E. 774).

Judgment reversed.

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


text:
    16281.
    Gafford v. The State.
    Decided April 15, 1925.
    Conviction of manslaughter; from Thomas superior court-judge W. E. Thomas. January 26, 1925.

      James B. Burch, for plaintiff in error.

      Clifford B. Hay, solicitor-general, W. H. Hammond, contra.
   Broyles, C. J.

1. In the light of all the facts of the case, none of the special grounds of the motion for a new trial (many'of which are too incomplete and defective to be considered) requires a reversal of the judgment below.

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

Judgment affirmed.

Luke and Bloodworlh, JJ., coneur.


text:
    15803.
    Bowden, adm’r, v. Owens et al.

   Broyles, O. J.

Parol evidence is admissible to explain the true relation of parties to negotiable instruments, and especially so where (as in this case) the indorsements upon a promissory note are not in regular course for the purpose of transferring the title to the note. Section 5796 of the Civil Code of 1910, which provides that “blank indorsements of negotiable' paper may always be explained between the parties themselves,” is applicable not only to “blank indorsements” in the technical sense, but also to all indorsements which are irregular and unnecessary to pass title to the paper. Atkinson v. Bennett, 103 Ga. 508, 510 (30 S. E. 599).

Decided April 15, 1925.

Certiorari; from Fulton superior court—Judge E. D. Thomas. May 36, 1934.

Walden & Hixson, B. W. Crenshaiu, for plaintiff in error.

Burress & Dillard, contra.

Under this ruling and the facts of the instant case, parol evidence was admissible to show that the persons who apparently signed the note sued on as guarantors were in fact co-makers of the note with the plaintiff in error, the evidence adduced was sufficient to carry this question to the jury, and the trial court erred in directing a verdict for the plaintiff, and the judge of the superior court erred in overruling the defendant’s certiorari.

Judgment reversed.

Luke and Bloodioorlh, JJ., concur.


author: Jenkins, P. J.

text:
    15834.
    Guggenheimer & Company Incorporated, for use, etc. v. Levinson.
    Decided April 15, 1925.
    Complaint; from Pulaski superior court—Judge Graham. June 9, 1934.
    J. H, Milner, for plaintiff.

      H. B. Coates, Lawson & Ware, for defendant.
   Jenkins, P. J.

1. “In special agencies for a particular purpose persons dealing with the agent should examine his authority.” Civil Code (1910), § 3595. In the instant case the person whom the defendant purchaser dealt with as the “representative” or “attorney” of the plaintiff vendor was not shown to have been clothed with any sort of authority to enter upon the alleged contract of accord and satisfaction, and consequently, under the evidence disclosed by the record, such an agreement could not be taken as having had any original binding authority upon the plaintiff vendor. The defendant, in whose favor a verdict was rendered, appears to rely only upon the principle of ■ ratification.

2. Since the plaintiff not only denied that the unauthorized agreement had ever been reported or ratified, but also denied .that it was ever in fact made, the court properly submitted to the jury the latter disputed question, but should have also submitted the other issue as to whether the unauthorized agreement of accord and satisfaction, if made, was ratified by the plaintiff. Both of these questions being in dispute, both should have been submitted to the jury, since, in order for the defendant to prevail, both issues would have to be determined in his favor. See Joseph Liebling Inc. v. Tabb, 30 Ga. App. 38, 40 (116 S. E. 666); Riley v. London Guaranty Co., 27 Ga. App. 686 (109 S. E. 676).

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    15907.
    BOHANNON v. KNAPP.
    Although an instruction complained of in the motion for a now trial and certified by the judge as a part of the charge of the court is not contained in a separate part of the record certified by him as the charge of the court, it will not be assumed by this court that the instruction complained of was not given, but the record will be reconciled by assuming that all the instructions certified by him were given.
    The verdict was authorized by the evidence. The charge of the court was full, clear, and fair, and was not subject to any of the exceptions taken.
    Decided April 15, 1925.
    Attachment; from city court of Newnan—Judge Post. August 15, 1924.
    Knapp sued Bohannon in attachment for the principal sum of $15,000, on a written unconditional promise to pay for money loaned. The plaintiff alleged that the note had been left in a safe to which both plaintiff and defendant had access, and had become lost, and he undertook to establish a. copy of its contents. The defendant admitted receiving the money, and set up by his plea that the money was received not as a loan, but under an agreement whereby he was to organize a corporation in the State of New York, using the money so received in''acquiring certain properties for said corporation, and that, upon this being done, the plaintiff was to receive one half of the capital stock of the corporation in satisfaction of the said advance; that the money was in fact used as provided by the terms of the agreement, and that the plaintiff was tendered one half of the capital stock of the corporation as had been agreed, but refused to receive it, and failed to return to the defendant certain collateral stock pledged to him by the defendant in guarantee of performance of the obligation set forth in his plea; and the defendant asked damages by way of recoupment in the sum of $45,000, the alleged value of the hypothecated collateral. On the trial the issue was whether the money had been turned over to the defendant as a mere loan, as contended by the plaintiff, or whether it had been advanced for the purpose and under the agreement alleged by the defendant. On this issue the testimony of the parties was in sharp conflict. The plaintjlf testified that the note sued on, containing an unconditional promise to pay, together with the collateral securities attached, had been tiled in a safe to which both of the parties had access, and that all those papers disappeared and became lost. .The plaintiff’s evidence went to show that the collateral securities Wore entirely worthless at the time they wore attached to the noto, and remained worthless. His testimony as to the terms of the note or agreement was corroborated by certain other witnesses, who testified as to the contents of the lost instrument sued on. The gravamen of all the special assignments of error, except the 9th, is to the effect that the judge in his charge to the jury failed to present fairly the defense that the plaintiff was not entitled to recover on the case as made, because there was no unconditional borrowing of money from him by the defendant; the defendant insisting that he entered into an agreement with Knapp to organize a corporation, and that no money was borrowed by him, but that he received of Knapp money to be used to promote the corporation as agreed. In the motion for a new trial exception is taken not only to the failure so to charge, but to various excerpts from the charge as being defective for this same reason. In the 4th and 5th grounds of exception some variance appears between the excerpts therein, as certified by the judge, and the corresponding portions of the charge of the court certified as a whole. The 9th ground of the motion is as follows: “That the court erred in the trial of said case, for that during the charge by the court to the-jury and in the presence and in the hearing of the jury, the court turned to counsel for defendant and said, ‘Do you wish me to instruct the jury upon your plea that the plaintiff has damaged Bohannon in refusing to return to him the three hundred shares of stock?’ Movant’s counsed informed the court that he desired the jury instructed upon that branch of the case, whereupon the court proceeded to charge the jury. Movant insists that the conduct of the court was especially prejudicial and hurtful to movant for the reason that it belittled and minimized the importance of this defense, especially as, in the beginning of the charge, the court had stated to the jury that the issue was a part of the pleadings and evidence in the'case, and. if not an intimation or an expression of opinion by the court that the evidence did not authorize a recovery by the defendant against the plaintiff, as insisted, that the insistence was a trivial matter and not worthy of real consideration.” With respect to this ground, the judge made this additional certificate: “The case was tried throughout on a sole issue as to whether or not $15,000 Knapp let Bohannon have was a loan. Neither before the court nor in addressing the jury did defendant’s eounsel argue or insist upon damages. On completing my charge, having the pleadings tying on my desk before me, I noticed a part of the plea claiming damages for non-return of the collateral stock certificates, and turned to defendant’s counselor and asked him if he wished a charge on that branch of the case. He replied, Ht is' a part of the plea, your honor;’ whereupon I supplemented my charge on that issue.”

      A. H. Freeman, for plaintiff in error.

      W. G. Post, contra.
   Jenkins, P. J.

(After stating the foregoing facts.)

1. While it is a well-settled rule that, where a conflict occurs between the recitals in a bill of exceptions and the record, the record controls (May v. State, 90 Ga. 794 (3), 17 S. E. 108; Rome Ry. &c. Co. v. King, ante, 385), yet where a conflict occurs in the certified record itself, as where a judge certifies to having given a specific instruction, and the general charge as also certified and sent up does not contain the language of such excerpt in the instruction embracing the law on the same subject, the record will be reconciled by assuming that both charges were given. Grooms v. Grooms, 141 Ga. 478 (3) (81 S. E. 210). In the instant case it appears manifest to us that the excerpts specifically excepted to, and certified by the judge to be true, constitute true and correct excerpts from the charge as given.

2. The charge as a whole has been carefully read and considered, as well as the particular excerpts excepted to, and we hold that the complaints that the judge failed to present fairiy to the jury the defense actually relied on by the defendant is altogether without merit. The language of the plea, setting forth fully, plainly, and at length this ground of defense, was given to the jury, and throughout the entire voluminous charge and in dealing with every phase of the law this one vital issue in dispute was plainly recognized and set forth. It is true that the defendant denied that the agreement under which the money was received constituted an unconditional promise to pay, and contended that it was not a mere loan—this was the one issue in dispute; and it is true that the excerpt from the charge as set forth in the 4th ground of the motion refers to the “note” as having been “admittedly” made, and the excerpt set forth in the 5th ground refers to the collateral as having been given to secure a “loan,” otherwise referred to in the charge as an “advance;” still, since there was no dispute that the money was actually loaned, advanced, or received, either as a mere loan under, an unconditional promise to repay or for the purpose of being used by the defendant in the organization of the proposed corporation, in which latter event the loan or advance was to be satisfied by the tender , or delivery of one half of the capital stock, and since the issue was not whether the money had been loaned or advanced, but related solely to how such loan or advance should be satisfied, and since the judge plainly, fully, fairly, and repeatedly instructed the jury to pass upon that issue as the determining factor in the case, we do not think that the use of the word “loan” in the matter referred to could have possibly prejudiced the jury. Nor do we think that the exception taken in the 9th ground of the motion would authorize us to set the verdict and judgment aside.

Judgment affirmed.

Stephens and Bell, JJ., concur.