text:
    18749.
    Atlanta & West Point Railroad Co. v. Lambert.
   Stephens, J.

1. An instruction of the court to the jury which correctly states a complete proposition of law is not error because of failure to give an additional instruction in immediate connection therewith. Where the court, in part compliance with written request to charge, made by the defendant, submitted to the jury as issues of fact whether the defendant owed certain duties to the plaintiff, or whether the defendant was negligent, and failed to give in immediate connection therewith an additional part of the requested charge, as to the duty resting upon the plaintiff as respects the avoidance of the consequences of the defendant’s negligence, if there was any, in failing to perform any of these duties, the failure so to charge did not constitute error in that part of the requested charge which was given, in that the court, in failing to give the omitted part, magnified the duty and responsibility of the defendant, and minimized the correlative duty and responsibility of the plaintiff.

2. In a suit for damages for personal injuries alleged to have been received by the plaintiff from being run into by a backing freight-train of the defendant at a public crossing, where in the petition, the plaintiff alleged that the defendant was negligent in not maintaining a watchman at the crossing, this allegation of negligence was not disproved by the testimony of the plaintiff himself that the conductor of the freight-train was acting as a watchman, but that he, when the plaintiff was approaching the crossing, was leading a blind man across the railroad-track at the crossing. Erom this evidence an inference wa's authorized that the conductor, when the plaintiff was approaching the crossing, had ceased to act as a watchman at the crossing as respects any duty owing by the railroad company to the plaintiff to maintain a watchman at the crossing. It was therefore not error to refuse to give an instruction, requested by the defendant, that the plaintiff’s allegation that the defendant was negligent in not maintaining a watchman at the crossing was disproved by his own testimony that the defendant maintained a watchman in the person of the conductor.

3. On the trial of such a suit, where it appeared from uncontradicted evidence, that the plaintiff knew of the train’s proximity to the crossing, there was no issue presented as to whether there was any duty resting upon the plaintiff to look or listen for the approach of a train. The court therefore properly refused to give a requested charge submitting to the jury, as an issue, whether the plaintiff was under a duty to look and listen for the approach of the train.

4. An exception to the failure of the court to charge, as requested, that “this law as to the duty of a railroad company in approaching a public crossing relates to a person or property which may be on the crossing . . as the train . . approaches upon said crossing, and has no relation to a person who comes upon the crossing,” shows ho ground of error where it does not appear that the attention of the jury had been called to any law as to the duty of a railroad company when its train approaches a public crossing, and where it does not appear that the court had not elsewhere in the charge correctly instructed the jury as to the duty resting upon a railroad company as respects a person who comes upon the crossing after the train has partially passed over.

5. An exception to the failure of the court to give a requested charge as to the statutory duty of the plaintiff to have his automobile under immediate control, and not to operate it at a speed greater than 10 miles per hour, upon the ground that, while the court gave to the jury a charge with reference to the duty of a person approaching a railroad crossing, movant’s request . . was an application of the principles of law limited to one breach of the duty of such person approaching the crossing, is insufficient to show error, in that it does not appear that the court, in charging with reference to the duty of a person approaching a railroad crossing, did not charge the principles of law limited to this branch of the duty of such person when approaching the crossing.

6. An instruction to the jury that the amount which the jury may allow to the plaintiff for a certain element of damage, as, for instance, for an impaired earning capacity, must be reduced by the jury “under instructions” which the judge states lie has already given, even if the instructions referred to were the instructions as to a reduction of. the amount found by the application of the law as to comparative negligence, ivas a charge favorable to the defendant; and although the court had "specifically instructed the jury that the plaintiff could recover separate sums representing other elements of damage, this charge was not error as limiting the jury’s right to reduce to a cash value only the sum allowed by them for impaired earning capacity.

Decided February 27, 1929.

Howell, Ileyman & Bolding, Post & Arnold, for plaintiff in error.

Hall & Jones, contra.

7. Motions for continuance are addressed to tlie sound discretion of tlie trial judge, and, unless he has abused this discretion, it will not be interfered with. Hilton v. Haynes, 147 Ga. 725 (2) (95 S. E. 220). The trial judge did not abuse his discretion in denying a motion for a continuance upon the ground that a witness living in another county, who had been subpoenaed and had responded to the subpoena, had, while in attendance on the court, become ill and unable to testify, where it afterwards appeared that other disinterested witnesses testified to the same facts that it was expected would be testified to by the absent witness. Rome Railroad Co. v. Barnett, 94 Ga. 446 (20 S. E. 355).

S. Under the doctrine of Baltimore & Ohio Railroad Co. n. Goodman, 275 U. S. 66 (48 Sup. Ct. 24, 72 L. ed. 167, 56 A. L. R. 645), a verdict for the defendant was not demanded as a matter of law. Seaboard Air-Line Railroad Co. v. Sarman, 38 Ga. App. 637 (144 S. E. 810) ; Georgia Railroad &c. v. Stanley, 38 Ga. A.pp. 773 (145 S. E. 530).

9. The petition as amended set out a cause of action, and was good as against the demurrer. The court, fairly to the defendant, submitted all the issues made by the pleadings and the evidence, and also charged substantially as requested by the defendant. No error appears, and the evidence authorized the verdict for the plaintiff.

Judgment affirmed.

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


source: Caselaw Access Project

author: Stephens, J.

license: Public Domain

text:
    18752.
    Jefferson Standard Life Insurance Co. v. Rankin, administratrix.
   Stephens, J.

1. A contract -of life-insurance, in so far as it obligates ' the insurer to pay an indemnity upon the death of the insured, does not become a debt until after his death, and therefore is not collectible in the right of the insured; but where under the terms of the policy it is made payable to the executors and administrators of the insured, it is a debt not due to the deceased insured, but to his executors and administrators in their representative capacity, and constitutes an asset of the estate, and is collectible by them in their right as the representatives of the estate, for the purpose of distribution according to the law applicable to the distribution of assets of an estate. Therefore, a debt due by the deceased to the insurance company, not being a debt in the right of the representatives of the estate, is not a matter for set-off against the debt arising under the insurance policy to the representatives of the estate and which was not a debt contracted in the lifetime of the deceased. Civil Code (1910), §§ 4340,4341,4345,5668; Graiv ford v. Beal and Crawford v. Vaughn, Dudley (Ga.) 205; Mills v. Lumpkin, 1 Ga. 511 (44 Am. D. 677) ; Bay v. Dennis, 5 Ga. 357; Farmers and Merchants Bank v. National Life Ins. Co., 161 Ga. 793 (131 S. E. 902, 44 A. L. R. 1184) ; Day v. New England Life Ins. Co., 111 Pa. 507 (4 Atl. 748, 56 Am. St. R. 297) ; Boisseau v. Bass, 100 Va. 207 (40 S. E. 647, 57 L. R. A. 380, 93 Am. St. R. 956) ; Patterson v. Patterson, 59 N. Y. 574 (17 Am. R. 384); McKown v. Manhattan Life Ins. Co., 91 Red. 352; 11 R. C. L. 265; 17 C. J. 1377; 24 C. J. 755. See contra Boyden v. Massachusetts Mutual Life Ins. Co., 153 Mass. 544 (27 N. E. 669) ; Ladd v. Union Mutual Life Ins. Co., 116 Fed. 878.

Decided February 27, 1929.

Bryan & Middlebroohs, Marlin, Marlin & Snow, for plaintiff in error. Byals, Anderson & Anderson, contra.

2. In' a suit by the administrator of the insured against the insurer in such a case, to recover on the policy, the court properly, on demurrer, struck the defendant’s plea setting off debts alleged to have been due . by the deceased to the defendant, and, as the evidence otherwise demanded a verdict for the plaintiff, the court properly directed a verdict for the plaintiff in an amount representing the face value of the policy and interest, less an amount representing a sum of money which the deceased insured had borrowed from the defendant insurer, and which by the terms of the policy was chargeable against its face value.

Judgment affirmed.

Jenkins, P. J., amd Bell, J., eoneur.


text:
    18947.
    South Georgia Power Company v. Beavers et al.

   Stephens, J.

1. Whether or not allegations in a pleading that two corporations have become merged and also that one owns and controls the other and directs its affairs are subject to demurrer upon the ground that the allegations are not sufficiently specific, in that they do not show how or in what manner the alleged merger has been accomplished, or that one corporation owns and controls the other and directs its affairs, the objection is removed and there is no merit in the demurrer where it is further alleged that this knowledge is not possessed by the pleader, but is possessed by the opposite party by reason of the fact that the terms, conditions, and provisions of the merger, and all writings of every kind effecting the merger, are within the knowledge, custody, and control of the opposite party.

2. In a suit against several corporations to recover in one action damages for personal injuries, where the petition alleged that some of the corporations had become merged with one another, an amendment to the petition, adding as new parties two other corporations, who, it is alleged, committed the tort complained of, and praying that process issue against them, was properly allowed. Civil Code (1910), § 5687.

Decided February 27, 1929.

Lawrence & Abrahams, Hollis Fort, for plaintiff in error.

Stephen Pace, W. TP. Dykes, contra.

3. The trial court did. not err in overruling the demurrer to the petition .and in allowing the amendment.

Judgment affirmed.

Jenkins, P. J., and Bell, J., eonettr.


text:
    18718.
    RANSOM et al. v. JACOBSON.
    Decided February 28, 1929.

      James E. Warren, for plaintiffs. Clarke. & Clarke, for defendant.
   Stephens, J.

(After stating the foregoing facts.) We do not think that the evidence conclusively and as a matter of law demands the finding that it was agreed between the plaintiffs and the defendant to make a permanent reduction in the monthly rental contracted for, or that the defendant was relieved of the contract. We think the evidence is sufficient to authorize a finding, if it does not as a matter of law demand, that the plaintiffs, from time to time and for stipulated periods within the time of the lease, Waived their right to the monthly rental of $800 contracted for, and accepted in full settlement for particular months, certain sums agreed upon in amounts less than the monthly rental of $800 contracted for. It is clear and without dispute, as appears from the last agreement respecting a reduction of rent, namely the one of August 18, 1925, that the reduction would last only until January 1, 1926, “unless owners decide to extend the same reduction in rent.” So far as this communication is concerned, it is clear and without dispute that after January 1, 1926, the rent contract would continue in full force under the terms of the lease contract, which provided for a monthly rental of $800 until the date of its expiration, April 30, 1927.

While the evidence may not be conclusive as to whether the plaintiffs agreed with the defendant to cancel the lease, we are of the opinion that the evidence is sufficient to authorize a finding that there was no agreement canceling the lease, but that the plaintiffs were merely willing, and were endeavoring, for the mutual benefit of themselves and the defendant, to substitute another tenant for the defendant. As to the defendant’s vacating the premises before the plaintiffs obtained another tenant, and without the plaintiffs and the defendant coming to any terms relieving the defendant and substituting therefor another tenant, the evidence certainly does not demand an inference that the defendant, who had already vacated the premises, was relieved of his obligation under the lease by the plaintiffs’ subsequent leasing of the premises to another. The tenant continued to occupy the premises from the first of January 1926 until he vacated it at the end of that month, and paid $800 as rental for that month. While it is true that this payment was made after the plaintiffs had issued a distress warrant for the rent for that month, the tenant nevertheless in fact paid the contract rental for the month of January, 1926, although it is true he may not have considered that it was legally due, and that he paid it for the purpose of relieving himself of the levy under the distress warrant.

We are of the opinion that the evidence was sufficient to authorize a verdict in some amount for the plaintiffs, and that the court erred in directing a verdict for the defendant.

Judgment reversed.

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


text:
    18812.
    City of Albany v. James.
    Decided February 28, 1929.
   Stephens, J.

1. A person is under a duty so to use his own property as .not to injure another. Sic utere tuo ut alienum non Isedas. One who maintains dangerously and highly electrically charged wires on his own premises, in such close proximity to the adjoining premises of another as to render the wires so charged dangerous to persons occupying and enjoying the latter premises, is under a duty to exercise due care to render the wires safe to persons on the adjoining premises who are likely to come in contact with the wires. This duty is owing to a person lawfully on the adjoining premises, although he may be employed and working there in close proximity to the wires as a servant in the employ of an independent contractor who only owes him the duty to furnish him a safe place to work. This case is distinguishable from the case of Central of Georgia Railway Co. v. Lawley, 33 Ga. App. 375 (126 S. E. 273). In that case the defendant’s dangerously charged wires were not maintained in dangerous proximity to another’s property, but the person injured by coming in contact with the wires, had come upon the defendant’s premises, and, in the prosecution of construction work under an independent contractor, had come into dangerous proximity to the wires and was injured. It was there held that the defendant was not negligent, since the wires had not been erected and installed in an originally unsafe and improper manner, and since the dangerous proximity to the wires arose by reason of the conditions created by the workmen themselves during the progress of the work as directed by the independent contractor, and that the defendant did not know, and could not have anticipated, that the independent contractor did not, or would not, know of the danger, and had failed, or would fail, to warn the injured workmen thereof.

2. Where a city maintains in one of its public alleys dangerously and highly electrically charged wires within twelve or fifteen inches of the premises of another, upon which a building is being erected close up to the property line abutting on the alley, upon which workmen are engaged in the construction of the building, with the knowledge of the city, although working under an independent contractor, the city is under a duty to these workmen to exercise due care to maintain the wires in a safe condition as respects insulation or otherwise, so as to prevent injury to the workmen, who in the progress of the work are likely to become injured by coming in contact with the wires. Rome Railway & Light Co. v. Jones, 33 Ga. App. 617 (127 S. E. 786) ; Rome Railway & Light Co. v. Jones, 37 Ga. App. 244 (139 S. E. 579); Illingsworth v. Boston Light Co., 161 Mass. 583 (37 N. E. 778, 25 L. R. A. 552); Griffin v. United Electric Light Co., 164 Mass. 492 (41 N. E. 675, 32 L. R. A. 400, 49 Am. St. R. 477) ; Stevens v. United Gas & Electric Co., 73 N. H. 159 (60 Atl. 848, 70 L. R. A. 119) ; Perham v. Portland Electric Co., 33 Ore. 451 (6) (53 Pac. 14, 40 L. R. A. 799, 72 Am. St. R. 730).

3. The petition set out a cause of action, and the court properly overruled the demurrer.

Judgment affirmed.

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

Milner & Farlcas, for plaintiff in error.

Bennet & Peacoclc, contra.


text:
    18915.
    HANSON v. BANK OF LAGRANGE.
    Decided February 28, 1929.

      E. A. Jones, for plaintiff in error. Dulce Davis, contra.
   Stephens, J.

This is a suit on a note, executed December 8, 1926, in behalf of an insolvent bank, the payee, in which the defendant pleaded as a set-off an amount which the defendant alleged that he had on deposit in the bank when the bank closed its doors and ceased operation. The undisputed evidence was to the effect that the defendant, C. W. Hanson, was pastor of the First Christian Church of LaGrange, Georgia, and that the money had been deposited by him in the plaintiff bank in December, 1926, and January, 1927, “just,before the bank closed” and after the creation of the debt evidenced by the note sued on, and was deposited to the credit of “C. W. Hanson, pastor, First Christian Church, La Grange, Ga.,” that the money did not belong to him individually, but had been collected by him from various persons for the benefit of the church, and was money belonging to the church, and that he was personally responsible to the church for the money. It does not appear that the plaintiff bank at any time before the trial had knowledge that the funds on deposit did not belong to the defendant, other than might be inferred from the fact that the defendant in making the deposit in his own name described himself as “pastor. First Christian Church, LaGrange, Ga.” This was all the evidence. A verdict for the plaintiff in the full amount sued for was directed. The defendant, without moving for a new trial, excepted.

Although the defendant, when depositing the money in his own name, described himself as “pastor, First Christian Church, La Grange, Ga.,” he contracted with the bank in his individual capacity. The expression “pastor, First Christian Church, LaGrange, Ga.,” was merely descriptio persons. Stephens v. Atlanta, 119 Ga. 666 (46 S. E. 872), and cit.

Whatever right, title, or interest the church may have had in the fund, the depositor had the right, at any time after having deposited it to his own credit (which he did although describing himself as “pastor,” etc.), to withdraw it from the bank, in the absence of any protest against the depositor’s right to withdraw, made to the bank by the true owner of the funds. Munnerlyn v. Augusta Savings Bank, 88 Ga. 333 (14 S. E. 554, 30 Am. St. R. 159).

The bank, without any knowledge of the fiduciary character of the fund, would have been protected, as against the beneficiary, in accepting the fund from the depositor in payment of the depositor’s debt to the bank. This is supported in principle by Ruan v. Gunn, 77 Ga. 53. The bank, however, even with the consent of the trustee who deposited the money, could not, as against the right of the true owner or beneficiary, appropriate the fund, with knowledge of its fiduciary character, to the payment of the pre-existing debt of the depositor. American Trust &c. Co. v. Boone, 102 Ga. 202 (29 S. E. 182, 40 L. R. A. 250, 66 Am. St. R. 167). This would have been a participation by the bank in a conversion of the fund from its true owner, the beneficiary, and the beneficiary could have recovered it from the bank. The theory upon which the bank is held liable to the beneficiary is not that the depositor, as trustee of the fund misapplied it by applying it to his own debt to the bank, but that the bank converted the fund by receiving and applying it upon the debt of the depositor with knowledge that the fund did not belong to the depositor but belonged to the beneficiary. It follows, therefore, if, in the case before the court, the First Christian Church, as the beneficiary and owner of the fund, could, after an application by the bank of the fund to the payment of the depositor’s own debt, still recover the fund from the bank, the bank can not now be forced by the defendant’s plea of set-off to accept the fund as a credit on the defendant’s debt. The defendant’s application, by reason of a plea of set-off, of the deposit -which he had placed in the bank in his own name, but in which another had the beneficial interest, was not by virtue of any act on the part of the bank, and the bank, under such circumstances, could not be guilty of a conversion to its own use as against the rights of the beneficiary. As against the bank, the beneficiary can not complain, unless the bank, with notice of the beneficiary’s right, participated in a conversion of the fund. It follows therefore, that the bank, in permitting the defendant, in his plea, to set off the fund against his own debt to the bank, did not convert the fund as against the beneficiary. The beneficiary, therefore, can not go against the bank for a conversion of the fund; and, the fund having by such credit been paid to the depositor having legal title to the fund and the right, as against the bank, to control it, there is no fund in the bank belonging to the beneficiary which the beneficiary can make claim to. As far as this record discloses, the beneficiary has made no claim to the fund in the bank, and has done nothing by way of protest against the bank’s paying the fund to the defendant who deposited it in the bank as his own money, even if this could have availed the beneficiary anything where the bank' had not been a party to a conversion of the fund.

Allowing the defendant to set off against his own debt money belonging to another, which he had deposited in the bank to his own credit, might be to the interest of the beneficiary, as the bank is insolvent, and the defendant, who is not shown to be insolvent, would afterwards be responsible to the beneficiary for the entire fund. After allowing the set-off, the beneficiary can collect from the defendant the full amount of the deposit, whereas, as against the insolvent bank, the beneficiary will, no doubt, if it collects anything at all, collect only a percentage of the deposit. In this connection attention is called to the case of Funk v. Young, 138 Ark. 38 (210 S. W. 143, 5 A. L. R. 79), where it is held: “That the deposit account of the maker of a note to an insolvent bank stands in his name as trustee does not prevent his setting it off upon the note in the hands of the receiver’s assignee, if he is personally answerable for the amount of the deposit.” See also on page 83 of 5 A. L. R. a note in support of this proposition.

We therefore hold that whether or not the designation of the defendant as “pastor First Christian Church, LaGrange, Ga.,” could be held to be a fact or circumstance tending to put the bank on notice of the fiduciary character of the fund, the defendant in this case, nevertheless, had the right to set off the fund against his own individual debt to the bank, existing when the deposit was made, and the court erred in directing a verdict for the plaintiff bank.

As against the bank, before its insolvency, the defendant, as a depositor, clearly had the right to withdraw the fund. Munnerlyn v. Augusta Savings Banlc, supra. He will therefore now, since the bank is insolvent, have the same right to the fund, as against the bank, that he would have as respects his own individual deposit. He would certainly have the right, in a suit against him by the insolvent bank, to set off the amount of his individual deposit. Nix v. Ellis, 118 Ga. 345 (4) (45 S. E. 404, 98 Am. St. R. 111). He therefore has the right, in such a suit, to set off the deposit made by him in his name as pastor of the church. The court erred in not giving the defendant the credit for the deposit, and in directing a verdict for the plaintiff bank for the full amount sued for.

Judgment reversed.

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


text:
    18934.
    Goodman v. Clarkson.
   Stephens, J.

1. A sale or transfer of a stock of goods, wares, or merchandise may amount to a fraud, under the bulk-sales act of 1903 (Civil Code of 1910, §§ 3226-3229), although only a part of the stock be sold, where the sale is “out of the usual or ordinary course of the business or trade of the vendor.” Where a person engaged in the business of “selling Reo automobiles” maintains his principal office and place of business in one city and maintains a branch office and place of business in another city, and at the latter place keeps a stock of goods, wares, and merchandise, consisting of second-hand automobiles, office furniture, fixtures, automobile parts, and shop equipment, a sale by him of the entire stock of goods, wares, and merchandise kept at the branch place of business constitutes a sale “out of the usual or ordinary course of the business or trade of the vendor,” and where made without a compliance with the provisions of the bulk-sales act as respects notice to creditors, etc., is under the provision of the act, a fraud against the existing creditors of the vendor. Keller v. Fowler, 148 Tenn. 571 (4) (256 S. W. 879).

2. Whether or not the sale of a stock of goods, wares, and merchandise in bulk, which is fraudulent under the bulk-sales act, could be attacked by the then-existing creditors of the vendor in a suit against the purchaser to recover the value of the goods (Jaques & Tinsley Co. v. Carstarphen, 131 Ga. 1, 62 S. E. 82), yet where the vendor has afterwards become a bankrupt, the trustee in bankruptcy can, under the authority of § 70-e of the bankruptcy act, maintain a suit against the purchaser for the benefit of the creditors of the vendor, existing at the time of the sale. Dodd v. Raines, 1 Fed. (2d) 658; Gross v. Grossman, 2 Fed. (2d) 458.

Decided February 28, 1929.

Terrell & Terrell, Ilooper & Hooper, for plaintiff in error.

Harry L. Greene, Noah J. Slone, contra.

3. In a suit by the trustee in bankruptcy against the purchaser of a stock of goods, wares, and merchandise, to recover the value of the goods, upon the ground that the sale was fraudulent under the provisions of the Georgia bulk-sales law, it is immaterial whether or not the vendor was a corporation or a partnership; and where the suit is instituted against the defendant as an individual, doing business under a particularly described “company,” it is immaterial whether or not the “company” is a corporation or a partnership. See, in this connection, Charles v. Valdosta Co., 4 Ga. App. 733 (62 S. E. 493) ; Weller v. Davis, 15 Ga. App. 79 (82 S. E. 593).

4. The court properly overruled the demurrer to the petition.

Judgment affirmed,.

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


text:
    18851.
    COLUMBUS HEATING AND VENTILATING CO. v. BURT.
    Decided March 1, 1929.

      Charles G. Bruce, for plaintiff. H. H. Turner, for defendant.
   Stephens, J.

The Columbus Heating & Ventilating Company brought in the municipal court of Atlanta a'suit in trover against W. B. Burt to recover a furnace of certain description, together with registers and smoke pipes, of an alleged value of $185, to which the petitioner claimed title.

From the defendant’s plea and the undisputed evidence it appears that the defendant purchased the property from the plaintiff under a written contract by which the plaintiff reserved title to the property as security for the payment of the unpaid purchase-money; that it was agreed that the property sold should remain “personal property” of the plaintiff until full payment of the purchase-money; that, in default of payment in accordance with the terms of the contract, the plaintiff could enter upon the premises upon which the property had been installed and remove the property; that at the time of the institution of the suit the defendant was not in possession of the property sued for, by reason of the fact that it had become part of the realty, and as part of the realty had been sold by the sheriff under an execution against the defendant, and that the realty, including the property sued for, had been bought by a third person; that the plaintiff’s contract had never been recorded, and the purchaser at the sheriff’s sale had bought the real estate, including the property sued for, without notice of the plaintiff’s rights under the contract. It does not appear that at the time of the levy and sale of the real estate, including the property sued for, the defendant made any-effort to preserve the property or to conserve the plaintiff’s interest, either by notifying the plaintiff of the levy and sale of the property or by any other means whatsoever. It appears that at some time a demand on the defendant was made by the plaintiff and a compliance with the demand was refused. No issue was made upon the correctness of the amount sued for.

A judgment was rendered for the plaintiff in the full amount sued for. On appeal by the defendant to the appellate division of the municipal court this judgment was affirmed. By certiorari the defendant excepted to the judgment of the appellate division. The certiorari was sustained by the judge of the superior court, and a final judgment for the defendant was rendered, and thereupon the plaintiff excepted.

Although personal property has, by having been attached to the land, become a part of the realty, it may, nevertheless, by contract, be treated, to all intents and purposes, by the contracting parties as personalty. See construction of contract sued on in Columbus Heating & Ventilating Co. v. Burt, 166 Ga. 158 (142 S. E. 551). See also Wright v. DuBignon, 114 Ga. 765 (40 S. E. 747, 57 L. R. A. 669); Richards v. Gilbert, 116 Ga. 382 (42 S. E. 715) ; Power v. Garrison, 141 Ga. 429 (81 S. E. 225) ; Armour v. Block, 147 Ga. 639 (95 S. E. 228) ; Smith v. Odom, 63 Ga. 499; Pendley Brick Co. v. Hardwick, 6 Ga. App. 114 (64 S. E. 664) ; Empire Cotton Oil Co. v. Continental Gin Co., 21 Ga. App. 16, 18 (93 S. E. 525). Trover therefore will lie at the instance of one of the parties to the contract against the other for the conversion of the property. One in possession of personal property as the purchaser may, while the title thereto is in the seller, be guilty of a conversion of the property, where he permits it to be levied on and sold for his own debt under an execution against him in favor of another without notifying the seller of the levy and giving the seller an opportunity to protect himself. Witherington v. Laurens County Warehouse Co., 23 Ga. App. 307 (98 S. E. 228); Hancock v. Anchors, 26 Ga. App. 125 (105 S. E. 631); Woodbury v. Atlanta Denial Supply Co., 36 Ga. App. 548 (137 S. E. 302).

The fact that the seller had failed to record the contract by which it had retained title, and that by this failure the holder of the execution against the purchaser did not have constructive notice of the seller’s title, does not deprive the act of the purchaser, in failing to notify the seller of the seizure of the property under the levy, of its character as an act of conversion of the property, nor does it show that the seller has not been damaged by the purchaser’s conversion of the property. If the plaintiff had had notice of the levy, although the contract retaining title in the plaintiff was unrecorded and did not constitute constructive notice to the holder of the execution, the plaintiff, nevertheless, might have been able to assert his title as against the lien of the holder of the execution, upon the ground, perhaps, that the latter had had actual notice, prior to the levy, of the plaintiff’s title, or upon some other ground. It was the plaintiff’s right to have the opportunity to contest the levy, and what this opportunity might have been worth to the plaintiff is no concern of the defendant. See, in this connection, Rhode Island Locomotive Works v. Empire Lumber Co., 91 Ga. 639 (17 S. E. 1012).

As between the parties themselves, the reservation of title in the contract is good, in the absence of any record of the contract, .and the failure of the plaintiff to record the contract simply deprives the plaintiff of a right which it otherwise would have had as against a stranger purchasing the property bona fide and without actual notice of the plaintiff’s title. Bacon v. Hanesley, 19 Ga. App. 69 (90 S. E. 1033). The failure of the plaintiff to record his contract, therefore, can not inure to the benefit of the defendant. Whether the defendant in trover can defend by showing an outstanding title paramount to the plaintiff’s, he can not defend by showing an outstanding title acquired from himself, as for instance, a title in another person acquired by virtue of a levy and sale of the property under an execution against himself.

The verdict for the plaintiff in the municipal court was as a matter of law demanded, and the superior court erred in sustaining the certiorari.

Judgment reversed.

Bell, J., concurs. Jenkins, P. J., dissents.


text:
    18992.
    Honour et al. v. Smith.
   Stephens, J.

1. Since the monetary damage resulting from fraud is not a matter for consideration as respects fraud as a ground for rescission of a contract, only the facts constituting fraud, and not data as to the monetary damage resulting therefrom, are essential in a plea alleging fraud as a ground for a rescission of a contract. In a suit by a seller of real estate against the purchasers, to recover the purchase-money contracted to be paid, a plea alleging a rescission of the contract, upon the ground of fraudulent representation by the seller to the purchasers, which induced the sale, is sufficiently specific as to the facts alleged as constituting the fraud relied on as a basis for a rescission, where it alleges that the plaintiff represented to the defendants “that the property was in good physical condition, tenantable, free from leaks, and occupied, that the income from said premises amounted to $125 per month, that the plumbing in the house was . . in good repair and the interior finish of the house, including the paper, was in good condition, as was the house generally, that the value of the property was . . $18,000.”

2. Where a plea alleges the above acts as constituting fraud inducing the execution of the contract by the defendants, but alleges that only one of these representations, namely that the income from the property amounted to $125 a month, was known to them to be false, in that they knew the amount of income or rental received from .the property and that this income was only $50 per month, it alleges only that the plaintiff’s knowingly false representation as to the rental value of the property constitutes the fraud. Where the plea alleges that the defendants were persuaded by the plaintiff to purchase the property under his representations, “expressly asking the defendants to rely upon said representations as to the income derived from the property,” and that the defendants wore three hundred miles from the property at the time these representations were made, it alleges in effect that the defendants, when they were induced by the plaintiff when three hundred miles away from the property to purchase it, by a representation made by the plaintiff that the rental value of the property was $125 per month, when in fact the rental value of the property was only $50 per month, were ignorant of the true rental value of the property.

3. The plea, therefore, alleges that the sale of the property to the defendants was induced by the fraud of the plaintiff, and further alleges that the defendants “promptly complained to the plaintiff” and offered to restore to the plaintiff the property purchased, by actually executing and tendering to the plaintiff a deed to the property. The plea properly construed shows that this was done after the defendants had discovered the fraud. It therefore sets up a rescission of the contract by the defendants upon the ground of fraud by the plaintiff, and is good as against general demurrer.

4. The plea wherein it is alleged that the defendants promptly complained to the plaintiff and offered to restore the property and sent the plaintiff a deed thereto, and that the plaintiff agreed to accept the deed and cancel the contract, but returned the deed, is subject to special demurrer upon the ground that it fails to show when the defendants complained to the plaintiff, or when they offered to restore the property and tendered to the plaintiff a deed to it.

5. Since the plea alleges that the actual value of the property was $7,000, it clearly does not allege a total failure of consideration; and since it does not allege facts or data showing to what extent, if any, the consideration partially failed, it is insufficient as a plea of partial failure of consideration.

6. The plea was not subject to the general demurrer, but, except as here indicated, was subject to the special demurrers.

7. Since the judgment of the trial court generally sustaining the demurrer to the plea must necessarily be construed as sustaining all the grounds of demurrer, including the general as well as the special grounds, and since the plea was good as against .the general demurrer, and the judgment in so far as it sustained the general demurrer, was error, the court erred in sustaining all of the demurrer and in striking the plea. See Gunn v. James, 120 Ga. 482 (2) (48 S. E. 148) ; Pennington v. Douglas &c. R. Co., 3 Ga. App. 665 (60 S. E. 485). While the record is silent as to whether an opportunity was given the defendants to amend the plea and thereby meet the objections urged in the special demurrer, yet, since the court sustained the general demurrer, and there was therefore no necessity for an amendment to the plea, meeting the objections urged by the special demurrer, it will be assumed that no opportunity to make such amendment was offered. The court erred in sustaining the demurrer to the plea without giving the defendants an opportunity to amend the plea, and in tliei-eafter rendering judgment for the plaintiff on the notes sued on.

Decided March 1, 1929.

Augustine Sams, C. Holland Feagin, for plaintiffs in error.

Jones, Jones & Johnston, Neufville & Neufville, contra.

Judgment reversed.

Jenlzins, P. J., and Bell, J., concur.


author: Broyles, C. J.

text:
    19304.
    CATO v. THE STATE.
    Decided March 2, 1929.

      Morris Machs, J. A. Warbington, for plaintiff in error.

      Carlton W. Binns, solicitor, John A. Boyhin, solicitor-general, J. W. LeCraw, contra.
   Broyles, C. J.

The plaintiff in error was convicted in the criminal court of Atlanta of possessing whisky, and obtained a writ of certiorari from the superior court. The specific assignments of error are set out in subparagraphs (a), (b), (c), (d), (e), and (f) of paragraph 9 of the petition for certiorari. Subparagraphs (a), (b), and (e) allege, in substance, that the conviction of the accused by the judge (sitting without the intervention of a jury) was contrary to law and the evidence, and without the support of any legal evidence. Those subparagraphs are without merit, as the petition for certiorari contains some evidence authorizing the judgment of the court.

• The facts set forth in the remaining subparagraphs, (c), (d) and (f), are not verified by the answer of the trial judge, and, therefore, raise no question for the consideration of either the superior court or this court. Cochran v. Anderson, 30 Ga. App. 427 (118 S. E. 450); Cunningham v. Atlanta, 37 Ga. App. 634 (141 S. E. 214); Shirling v. Kennon, 119 Ga. 501 (2) (46 S. E. 630); Buchner v. State, 115 Ga. 238 (41 S. E. 583). The court did not err in overruling the certiorari.

Judgment affirmed.

Bloodworth, J., concurs. Luhe, J., absent.


text:
    18807.
    THOMPSON v. ANDERSON.
    Decided March 2, 1929.

      O. L. Gowari, for plaintiff. J. T. Grice, for defendant.
   Stephens, J.

H. L. Thompson sued C. A. Anderson in trover to recover the value of some timber which it was alleged the defendant on or about the first of May 1927, cut and carried away from land belonging to the - plaintiff. The sole issue presented was whether the land from which the timber had been cut was the property of the plaintiff or was the property of one Kicklighter from whom the defendant had bought the timber. The question as to the title of the land from which the timber was cut is dependent upon the location of the dividing line between the land of the plaintiff and that of Kicklighter. Irrespective of the description in the deed under which the plaintiff claims the question as to the title of the land from which the timber was cut in as far as the deeds are concerned is to be determined solely by a consideration of the deed under which Kicklighter claims title.

This deed to Kicklighter, which was dated April 27, 1898, conveyed to him “All the land covered by the waters of a water mill lying between the two parties and on Slade’s Branch; said branch being the line dividing Liberty and Tattnall, and been known as E. Kicklighter’s Mill for several years. Also said mill is included with said land.” The plaintiff was the owner of the land located north of Kicklighter’s Mill pond, and the establishment of the dividing line between the plaintiff’s land and this mill pond will determine whether or not the trees from which the timber was cut were located on the plaintiff’s land or within the land described in the deed conveying the land covered by the waters of the mill pond to Kicklighter.

It is unquestionably true, as is established by the undisputed testimony, that the timber which was cut was at the time located upon dry land at least fifty yards north of the northern boundary of the land actually at that time covered by 'the water of the mill pond. If this northern boundary of the water then in the pond Was the northern boundary of Kicklighter’s land, which, under his deed, was covered by the waters of the pond, the plaintiff’s title to the land upon which the timber rested is unquestionably established. The defendant claims however, that the northern boundary of Kick-lighter’s land is further north and above the place where the timber was located before it was cut. In support of the defendant’s contention Mr. Kicklighter testified that he had been in possession of the land covered by the waters of the mill pond since 1898 which, at the date of his testimony, which was December 1927, was less than thirty years. Hé also testified that he had not raised the mill dam within thirty years, and that he had “kept so.near an average head of water all the time until it is plainly marked by the water on the dam and trees,” that years ago he had marked a tree up the branch to which he “claimed,” and which was level with the water mark on his dam, that this tree was above the location of the timbers cut by the defendant and he engaged a Mr. Bacon to find the water level about the trees with the mark on the dam, and that Mr. Bacon found that the tree referred to by Mr. Kicklighter as being on the dividing line was on the level with the mark on the dam. Mr. Kicklighter testified the mill waters covered the land where these trees were located, that when he got “anything like a standing head of water the water backs up the branch and overflows this land, even overflows the land above where the last tree was cut,” that, “in the low places and between the trees when the water is full it is sometimes knee deep where some of these trees are.”' Mr. Bacon testified that by the use of an instrument known as a water level he found that when the water was at full head up to the mark on the dam it would back up above the place from which the timbers were cut. He further testified however, that with the water at full head it “would not cover the ground up there, but only be an inch or two deep in the gullies and low places between the trees, and the water at this stage would not touch the trunk or bodies of the trees [meaning the trees from which the timber was cut] for the reason that the trees were on tussock above the level.” The plaintiff testified that the water in the mill pond never backs up as far as the trees from which the timber was cut except when the pond is extremely full and then the water only fills the gullies and low places between the trees an inch or two deep, that the water never did at any time touch the'trunk or the body of the trees at any place, that when the pond is full he could walk dry footed on the ground to the stumps of any of these trees.

The court charged the jury that the deed conveying to Kick-lighter the land covered by the waters of the mill pond conveyed to Kicklighter only the land covered by the water when at the low water mark.

The jury found for the defendant. The plaintiff moved for a new trial upon the general grounds and upon an exception to the charge of the court to the effect that Kicklighter could establish a title by prescription to the land from which the timber was cut. This charge was invoked in the presence of the jury by the attorney for the defendant, and as given to the jury reads as follows: “I charge you that seven years possession under color of title gives title by prescription. However, that principle of law does not apply to adjoining land-owners, where the land is wild. Now there must be actual possession before that could apply to adjoining land-owners. In other words, if two of you own wild land and one of you has had possesion for twenty years, and another for ten years, neither would have the right to claim title over the other unless you had actual possession. Just the fact that you had a deed would not give you a right of claim unless you had some actual possession. I will charge you this principle of law which I think will cover it; that if you find that Mr. Kicklighter was in possession of a part of the tract of land, that his possession was such as to notify and put the world on notice as to the extent of his boundaries, and the same thing would be true of Mr. Thompson. I think that covers it.”

It is not necessary to add anything further to what is said in the headnotes.

Judgment reversed.

Jenlcins, P. J., and Bell, J., concur.


text:
    18996.
    Georgia, Southwestern & Gulf Railway v. Lasseter.
   Stephens, J.

1. Where a railroad-train approaches a crossing which, with knowledge of the railroad company, is well traveled, the railroad company is under a duty to take such precautions in the operation of the train as ordinary care would require, to avoid injury to any one who might attempt to cross the railroad-track at the crossing.

2. It is a question of fact whether the railroad company is negligent in operating its trains when approaching such a crossing, where the railroad company fails to keep a lookout ahead for persons who might be upon the crossing or fails to give an alarm by the ringing of the bell or the blowing of the whistle, or without regulating the speed of the train or without having the train under control. Western & Atlantic R. Co. v. Reed, 35 Ga. App. 538 (134 S. E. 134), and cit.

3. Other than the general duty resting upon a railroad company so to operate its train with ordinary care when approaching a crossing which the railroad company knows to be a well-traveled crossing, the company owes no particular duty to exercise any degree of care in the operation of the train so as to avoid injury at the crossing to a particular person, where, from the circumstances, the company does not know, or in- the exercise of ordinary care could not reasonably anticipate, that the person would likely come upon the crossing, or come into a situation where he would likely be injured by coming in contact with the train.

4. Where a person is traveling in an automobile truck about two hundred yards ahead of a moving train and in the direction of the crossing on a public highway which parallels the railroad-track, and where, by reason of an unobstructed view, "the servants of the railroad company operating the train can observe his situation and can see that his back is turned towards the train, and where he is approaching a road' which is perpendicular to the highway along which he is traveling and which crosses the railroad-track, but where the road along which he is traveling continues parallel to the track beyond the point at which the perpendicular road joins the highway, and where there is nothing to indicate that he intends to turn into the perpendicular road and come upon the railroad-crossing, the railroad company is under no duty to anticipate that he will leave the straight well-traveled highway and turn into the perpendicular road and come upon the crossing. Under . these circumstances there is no particular duty owing by the railroad company to the particular person traveling along the highway to exercise any degree of care in approaching the crossing, by keeping a lookout ahead, sounding the bell, blowing the whistle, regulating its speed, or having the train under control. The railroad company, however, after discovering that the person traveling in the truck along the high-, way is about to come upon the crossing, owes him some special duty to exercise ordinary care to prevent injuring him at the mussing. Where a person thus traveling along the highway turned into the perpendicular road and came upon the crossing and was killed by being, run into by the train, and suit was brought by his wife against the railroad company to recover for his homicide, where it did not appear in the petition that he manifested any intention to turn into the perpendicular road and come upon the crossing in time to enable the servants of the railroad company to take any precautionary measure to prevent injuring him at the crossing, and where the petition alleged merely that he traveled “until he reached a point where a well-defined and much-used road branched off” from the highway on which he was traveling towards the railroad-track, and that as he “reached said point where the same crosses the railroad he was struck by a train of the defendant and instantly killed," and where the petition did not allege any facts otherwise which might show any duty, under the circumstances, on the part of the servants of the railroad company to anticipate that the deceased intended to turn from the highway on which he was traveling into the perpendicular road, and came upon the crossing, the petition was subject to special demurrer upon the ground that it did not appear that the railroad company owed any duty to the deceased to .take precautions to prevent injuring him, other than the general duty resting upon the railroad company to approach the crossing with ordinary care to avoid injuring any person who might be approaching or passing over the crossing.

Decided March 2, 1929.

5. The petition set out a cause of action and was good as against the general demurrer, and, except as indicated above, was good against the special demurrer. The court erred in not sustaining the special demurrer, upon the ground that the railroad company owed no special duty to the deceased, under the circumstances, to take the precautionary measures which the plaintiff alleged the defendant negligently failed to . take. Judgment reversed.

JenJdns, P. J., and Bell, J., concur.

F. L. Forrester, F. L. Smith, Bennet & Peacoclc, for plaintiff in error. '

R. R. Forrester, Milner & Farhas, contra.


text:
    19082.
    Sovereign Camp Woodmen of the World v. Wheeler et al.

   Stephens, J.

1. A provision in' a certificate issued, by a fraternal beneficiary association to one of its members, which provides, pursuant to a provision of the constitution or a by-law of the 'association, that the payment of 'assessments levied against him shall cease at the expiration of twenty years, has reference only to the method of levying assessments, and confers no vested right which can not be annulled or impaired by subsequent legislation by the association during the life of the certificate and before the expiration of the twenty years, under the power in the association to change from time to time its constitution and by-laws, and to levy from time to time such assessments upon certificate holders as the association may see fit to levy and which assessments when so made are binding upon the certificate holder, not only by virtue of his membership in the association, but by virtue of the contractual provisions in the certificate whereby he consented and agreed to “pay all assessments and dues that may be levied during the time he shall remain a member of the [association].” This ruling is distinguishable from that in Eminent Household of Columbian Woodmen v. Eppes, 24 Ga. App. 762 (102 S. E. 174), wherein it was held that the certificate holder’s right to the full face value of the certificate was a right that could not be impaired by subsequent legislation of the association, although the certificate provided that it was subject to the laws of the association which might afterwards be enacted.

2. A member of a fraternal beneficiary association which has a supreme lodge and subordinate lodges, and which is governed by a representative form of government in which all tile members participate through their chosen representatives and adopt a constitution and by-laws, is presumed to be acquainted with the constitution and by-laws of the association, and is bound thereby. Trapp v. Sovereign Camp Woodmen of the World, 102 Neb. 562 (168 N. W. 191) ; Haner v. Grand Lodge A. O. U. W. of Nebraska, 102 Neb. 563 (168 N. W. 189) ; Fowler v. Sovereign Camp W. O. W., 106 Neb. 192 (183 N. W. 550); Stark v. Sovereign Camp W. O. W., 189 Ken. 719 (225 S. W. 1063) ; Marshall v. Knights of the Maccabees of the World (Mo. App.), (270 S. W. 418).

3. Where a fraternal benefit association issues to a member of the association a benefit certificate containing a provision that no assessments shall be levied against the holder of the certificate after the expiration of a period of twenty years, and the issuance of the certificate with that provision is authorized by the constitution and by-laws of the association, and where afterwards the provisions of the constitution and bylaws which authorize the issuance of certificates containing such a provision are repealed and new assessments are made from time to time and before the expiration of the period of twenty years, by virtue of the amended' constitution and by-laws, which provide for periodic assessments against certificate holders until the holders are otherwise notified, and which are acquiesced in by the certificate holder by the payment, within this period of twenty years, of the assessments so levied, and where the certificate provides that the certificate holder shall pay all assessments and dues that may be levied during the time he' shall remain a member of the association, and that the “certificate is issued and accepted subject to all . . the conditions named in the constitution and by-laws of this fraternity and [is] liable to forfeiture if said [certificate holder] shall not comply with said conditions, constitution, and laws and such by-laws and rules as are or may be adopted by the sovereign camp, head camp, or the camp of the jurisdiction of which he is a member at the date of his decease,” and that upon his failure to pay the assessments levied against' him the certificate shall become null and void, the certificate holder is bound by such legislation and assessments. When he, after the expiration of the period of twenty years, fails to pay the assessments levjed against him in accordance with the amended provision of the constitution and by-laws of the association, the certificate automatically lapses and becomes null and void.

Decided March 2, 1929.

Robert Q. Plunkett, for plaintiff in error.

E. S. Taylor, Graham, Wright, contra.

4. This being a suit by the beneficiary to recover upon a benefit certificate issued by such an association, to be payable in case of the death of the holder of the certificate, who was a member of the association, and where the holder of the certificate died after the certificate had, under the above rulings, lapsed and become null and void, a verdict for the plaintiff was without evidence to support it" and was contrary to law.

Judgment reversed.

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


author: Luke, J.

text:
    19297.
    BRAY v. McKENZIE.
    Decided March 5, 1929.

      Berry T. Moseley, for plaintiff in error.

      Qlarence B. Adams, contra.
   Luke, J.

R. E. McKenzie brought an action on a paper termed by him a “mortgage-note” against Sol. B. Bray, for $339.38 principal, besides interest and ten per cent, attorney’s fees. Petitioner prayed, (1) for “a judgment against defendant for the amount due on said note;” and (2) for a lien against “the crops referred to in said note, and described in the petition.” The verdict was that McKenzie recover of Bray $312.57.principal, with $43.48, interest to date of verdict; and that plaintiff'have “a mortgage lien to the amount of said sums against the following property, to wit: 2500 pounds of lint cotton, 120 bushels of cottonseed, 25 bushels of corn, and 300 bundles of fodder.”

By exceptions pendente lite the plaintiff in error questions the correctness of the court’s judgment overruling his demurrers to paragraph 5 of the petition. He excepts also to the overruling of his motion for a new trial based solely upon the usual general grounds.

Paragraph 5 of the petition is as follows: “Petitioner further shows that said note, while made out on a form for executing landlords’ liens, nevertheless shows on its face that the relation of landlord and tenant does not exist by reason of the statement that the said defendant Bray is a tenant of himself, and not that of E. E. McKenzie; and petitioner alleges that said paper is in effect a mortgage for supplies to make a crop.” The defendant demurred specially to this paragraph of the petition, and asked that it be stricken, (1) because the paper declared upon showed on its face that if the plaintiff had any lien, it was a landlord’s lien for supplies, and not a mortgage lien; and (2) because, even if the paper set out a mortgage lien, the same was not sufficiently pleaded to be foreclosed as a mortgage.

The paper declared upon is substantially as follows: “On or before the first day of October, 1926, I promise to pay E. E. McKenzie landlord, or order, four hundred twenty & no/100 dollars for provisions furnished by him to make my crops the present year on the premises occupied by me as tenant of said Sol B. Bray, in Madison County, Georgia.” “In consideration of the advances for which the above note is given, I hereby give to said E. E. McKenzie, or order, a lien on my entire crops to be grown the present year, as provided for by the act of the General Assembly of Georgia, approved February 25, 1875, and on my stock of all kinds consisting of . . . .” “It is hereby agreed and fully understood that this landlord’s lien is to. cover any debt that I already owe or may hereafter make with the said E. E. McKenzie, and agree that said lien may be enforced as a lien or mortgage at the option of the holder. I hereby covenant that I will not otherwise encumber said crops and stock by lien or mortgage, and there is no previous mortgage on same. And further contract and especially agree as a part of the consideration upon which said advance is made, that the first cotton, corn, or other produce I get ready or have for market is to be tendered, or a sufficiency thereof, to the holder of this obligation, in settlement of same at market price for such produce. . . .” The paper is signed by Sol B. Bray, and witnessed by a notary public.

The paper under consideration is so contradictory and uncertain' that it is well nigh impossible to say from the writing itself what was the intention of the parties, or what the paper really is. Considering the paper alone, it would appear more reasonable to conclude that it is not a mortgage. The first paragraph refers to R. E. McKenzie as landlord. The third paragraph gives a lien “as provided by the act . . approved February 25, 1875” (Ga. L. 1875, p. 20), which, applies only to liens of landlords. In the next paragraph “it is hereby agreed . . that this landlord’s lien,” etc. True, Bray locates the place as the premises occupied by him “as tenant of said Sol B. Bray.” It would appear more reasonable to suppose that Bray’s reference to himself as his own tenant was a mistake than to conclude that such an awkward and nonsensical expression should be employed to indicate that he was not the tenant of McKenzie, as is directly indicated by other parts of the paper. In short, our conclusion is that the paper of itself is too uncertain and contradictory to show that the parties intended that it should be a mortgage.

Bray admitted in his answer the execution of the paper declared upon, and that the plaintiff was the legal holder thereof, but claimed certain credits. The jury apparently allowed the credits, and something besides, and in the light of the contradictory evidence of the parties to the case, we can not say that the general verdict was not supported by the evidence.

We hold that the court erred in overruling the demurrer, as indicated above, but see no occasion for granting a new trial for that reason. We hold that the evidence sustains the general verdict for the plaintiff in the court below, and affirm the judgment of that court, provided that the portion of the judgment which gives the plaintiff a mortgage lien on the produce referred to therein be stricken from the judgment at the time the remittitur of this court is made the judgment of the trial court; otherwise the judgment is reversed. All costs of the writ of error are taxed against the defendant in error.

Judgment affirmed on condition.

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


text:
    19230.
    Atlantic Coast Line Railroad Company v. Hogrepe.
    Decided March 5, 1929.
    IB. K. Miller, for plaintiff in error. IB. Inman Gurry, contra.
   Luke, J.

1. The court did not err in overruling the demurrers to the petition.

2. It was error requiring a new trial for the court to refuse to allow the defendant’s counsel to open and conclude the argument to the jury, where the defendant introduced no evidence and that introduced by the plaintiff did not demand the verdict in his favor. Moore v. Carey, 116 Ga. 28 (5) (45 S. E. 258) ; Willett Seed Co. v. Kirkeby-Gundestrup Seed Co., 145 Ga. 559 (5) (89 S. E. 486); Fite v. Hooks, 34 Ga. App. 629 (130 S. E. 692). Of course, the rule laid down in Phillips v. Anderson, 34 Ga. App. 190 (1) (128 S. E. 922), and cit., as to what is required in order to obtain the opening and conclusion of the argument by an admission in the pleadings, has no application to the case at bar.

3. What occurred in the trial of the case subsequently to the refusal of the court to allow the defendant to open and conclude the argument was nugatory.

Judgment reversed.

Broyles, C. J., and Bloodworth, J., concur.


author: Bloodworth, J.

text:
    19313.
    Bridges v. Georgia Power Company et al.

    Decided March 5, 1929.
   Bloodworth, J.

1. The motion to dismiss the writ of error is overruled. See Carolina Portland Cement Co. v. Walker Roofing Co., 163 Ga. 33 (1), and eases cited.

2. The allegations of the petition, taken as true (as they must be when tested by a general demurrer), do not set out a cause of action. The petition does not show the breach of any legal duty which the defendant owed to the deceased. The injury did not naturally flow from any act of negligence of the defendant. This case is controlled by the principle announced in Mobley v. Monroe, 37 Ga. App. 364 (140 S. E. 516), and cit. See also Seaboard Air-Line Railway Co. v. Young, 20 Ga. App. 291 (93 S. E. 29) ; Underwood v. W. & A. Railroad Co., 105 Ga. 48 (31 S. E. 123); Savannah, F. & W. Railway Co. v. Beavers, 113 Ga. 398 (39 S. E. 82, 54 L. R. A. 314).

Judgment affirmed.

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

Hewlett & Dennis, Lindley W. Camp, T. F. Bowden, for plaintiff.

Colquitt & Conyers, Sidney Smith, McDaniel & Neely, Harry L. Greene, for defendants.


text:
    19352.
    CARTER v. OWENBY.
    Decided March 5, 1929.

      T. H. Crawford, G. A. Jones, for plantiff in error.

      William Butt, contra.
   Luke, J.

J. H. Owenby sued J. R. White, Hix Carter, and Mrs. M. J. Carter on a promissory note, in a justice’s court, and obtained a judgment in his favor. On appeal a jury in the superior court also found for the plaintiff. Mrs. Carter’s plea was that she was not liable, because the note was given for a debt of her husband, Hix Carter, and that she was security for him on the note; and this is the only issue presented by the record.

J. H. Owenby testified as follows: “I sold Hix Carter a horse, and he give me the note for him. We traded at my house, and when he signed the note and got White to sign it and presented it to me I told him that I would not take the note without Mrs. M. J. Carter signing the note, and then he went off, and when he came back the next day the note was signed by his wife, Mrs. M. J. Carter. I let him -have the horse then. I would not let him have the horse when he first brought the note. . . Mrs. Carter was not present when the note was made. I never said anything about the trade to her. I delivered the horse to Iiix Carter. I did not see Mrs. Carter sign the note, and I could not say whether she signed it as principal or security. I was not present when she signed it. I stated to Hix Carter at the time the trade was made that I'would not let him have the horse unless his wife signed the note with him.” Hix Carter testified that he told the plaintiff that he heard he had a horse for sale, and that he had come over to see about buying it; that the plaintiff would not take the note signed by the witness and White, and that the witness got his wife to sign it. We quote from this witness’s testimony the following: “She asked me not to buy the horse, and stated that she did not like to go my security to buy an old horse. I finally persuaded her to sign the note as security. She was not present when the trade was made, and had nothing to do with it at all.” Mrs. M. J. Carter swore unequivocally that she signed the note as security for her husband, Hix Carter; and Hix Carter’s testimony was to the same effect. The testimony of the plaintiff never refuted, but strongly supported that of Mr. and Mrs. Carter. Under this state of facts, we think the trial judge erred in refusing to set aside the verdict, and that his judgment overruling the motion for a new trial should be reversed. See Civil Code (1910), § 3007; Jones v. Weichselbaum, 115 Ga. 369 (41 S. E. 615).

Judgment reversed.

Broyles, C. J., and Bloodworth, J., concur.


author: Bloodwobth, J.

text:
    19353.
    Globe Indemnity Co. v. Valdosta Builders Supply Co.
   Bloodwobth, J.

1. When those grounds of the motion for a new trial which allege errors in the charge of the court are read in connection with the remainder of the charge, they show no error requiring another trial of the case.

2. The contested issues of fact were properly submitted to the jury, who decided them in favor of the plaintiff; the trial judge approved the verdict, and as this court can not say that there is no evidence to support the verdict, it must stand.

Decided March 5, 1929.

Lillie & Dickerson, Bryan & Middlebrooks, for plaintiff in error.

Copeland & Dukes, contra.

Judgment affirmed.

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


text:
    19364.
    PERRY, trustee, et al. v. ZEIGLER.
    Decided March 5, 1929.
    Rehearing denied April 10, 1929.

      8. P. New, T. E. High lower, for plaintiffs in error.

      G. C. Crockett, W. F. Bell, W. J. Collins, contra.
   Bloodworth, J.

S. M. Zeigler, the defendant in error, brought suit in the city court of Dublin against certain named persons as trustees of St. Paul A. M. E. Church, Dublin, Ga., and against the said church, the same being a suit to enforce a materialman’s lien, and the prayers of the petition being for a general judgment against the defendants and a special judgment against certain real estate, “said lands and improvements known as the parsonage of the Methodist church (colored).” This case was tried at the June quarterly term, 1928, of said court, and a general verdict in favor of the plaintiff was returned. Thereupon the judge presiding entered a judgment against the trustees as such, and against the church, setting up the plaintiff’s lien against the property described. A motion for a new trial was filed by the A. M. E. Methodist Church (St. Paul). This motion was overruled and a petition for certiorari was presented to the judge of the superior court by named persons “as trustees of the St. Paul A. M. E. Church, Dublin, Ga.” Upon a hearing of the petition the judge of the superior court sustained the certiorari and entered judgment against the- plaintiff. A writ of error was brought to review that judgment, and there was a motion to dismiss that writ of error because the St. Paul A. M. E. Church was not named or made a party as defendant in error. This was upon the first appearance of the case in this court; and this court held, under the pleadings and facts then before it, that “the action must be taken as one against the trustees and the church as separate defendants,” and that “the church is not a necessary party to a bill of exceptions brought to this court to review the judgment of the superior court sustaining the certiorari, since the church, not having excepted to the judgment overruling the motion for a new trial, and not being a party to the petition for certiorari, is not ‘interested in sustaining the judgment of the court below/ Accordingly, the motion to dismiss the writ of error, upon the ground that the church is not made a party as defendant in error, must be denied.” Zeigler v. Perry, 37 Ga. App. 648 (2) (141 S. E. 426). This court then held also that the judge of the superior court did not abuse his discretion in sustaining the certiorari.

The case went back to the superior court and the remittitur from this court was filed in the office of the clerk of the superior court . on January 25, 1928. The petition was then before the superior court for such action as it might take not in conflict with the decision heretofore rendered by this court and that was otherwise legal. . From the bill of exceptions it appears that the defendant in certiorari “made a motion to dismiss the petition, on the ground that the petitioners therein were not movants in the motion for a new trial in the city court of Dublin and not parties to the overruling of the motion of which they complain.” This motion does not appear in the record, but that it was made is not only stated in the bill of exceptions, but counsel for both sides argue that the motion was made (as shown by the brief of counsel for the plaintiff in error, it was oral), and the judgment of the superior court from which the bill of exceptions to this court was taken recites such a motion. The court did not err in sustaining the motion and dismissing the certiorari, as the record- shows that the petitioners for certiorari were not movants in the motion for a new trial in the city court and not parties to the overruling of the motion for a new trial of which they complain.

Judgment affirmed.

Broyles, C. J., and Buhe, J., concur.


text:
    19367.
    HORNE v. THE STATE.
    Decided March 5, 1929.

      J. E. Graigmiles, Titus & Delete, for plaintiff in error.

      J. Baird Edwards, solicitor, B. B. Earle, solicitor, G. E. Hay, solicitor-general, contra.
   Luke, J.

Edmond Horne was convicted of trespass, under section 217 of the Penal Code of 1910. His exceptions are based solely upon the general grounds. J. W. Horne, the prosecutor, and H. C. Copeland both claimed title to the land upon which the alleged trespass was committed, and both claimed possession of it. The defendant admitted going on the land, but claimed that he entered upon it-as the tenant of Copeland. Under .the record, the question of the defendant’s guilt or innocence was peculiarly for the jury, and this court can not say that the evidence does not support the verdict.

Judgment affirmed.

Broyles, G. J., and Bloodworlli, J., concur.


text:
    19368.
    HUMPHREY v. THE STATE.
    Decided March 5, 1929.

      J. C. Newsome, for plaintifE in error.

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

1. “Generally the word ‘liquor’ implies intoxicating liquor, and proof that the defendant sold liquor is sufficient to show, in the absence of adverse testimony, that he sold intoxicating liquor.” Smith v. State, 17 Ga. App. 118 (86 S. E. 283), and cit.

Counsel for tbe plaintiff in error insists that a new trial should be granted on the general grounds of the motion for a new trial, because “while Wade Walden swore that Fred Pilcher bought a quart of liquor from Hugh Humphrey, his witnesses, Fred'Pilcher and Jewell Osborn, both swore that they were with him, and he did not buy it.” In Patton v. State, 117 Ga. 234 (43 S. E. 533), the Supreme Court held: “In testing the sufficiency of evidence this court can not consider the credibility of witnesses, that being a matter exclusively for the jury.” In White v. State, 25 Ga. App. 554 (103 S. E. 803), this court held: “A verdict supported by any evidence and approved by the trial judge can not be set aside by this court because of conflicting evidence or alleged insufficiency of evidence.” “This court, by the constitutional amendment creating it, is limited in jurisdiction to the correction of errors of law alone, and, therefore, has no power to grant a new trial on the ground that the verdict is strongly contrary to the weight of evidence, if there is any evidence at all to support it.” Collins v. Broom, 21 Ga. App. 420 (94 S. E. 645), and cit. Under the foregoing rulings the contention of counsel for plaintiff in error is groundless.

3. The only ground of the motion for a new trial other than the general grounds is based upon alleged newly discovered evidence, the only effect of which would be to impeach a witness for the State. Even “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; Levining v. State, 13 Ga. 513; 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), 743 (90 S. E. 485), and cit.

Judgment affirmed.

Broyles, C. J., and Buhe, J., concur.


text:
    19377.
    REID v. THE STATE.

      Decided March 5, 1929.
    Rehearing denied April 9, 1929.

      Wallace & Wallace, W. O. Cooper Jr., for plaintiff in error.

      Charles H. Garrett, solicitor-general, contra.
   Bloodworth, J.

1. Special ground 1 of the motion for a new trial alleges that' the court erred in admitting certain evidence; and special ground 2 complains that the court erred in failing to rule out this evidence." This evidence consisted of a number of sentences, each containing distinct matter. It was objected to en bloc. Some of it was clearly admissible. The plaintiff in error should have segregated and pointed out the irrelevant and illegal parts. Failing to do so, he has no good cause for complaint of the action of the court. Eckman v. State, 23 Ga. App. 392 (98 S. E. 187), and cit. Moreover, the evidence objected to was admissible to show motive. Compare Reid v. State, 39 Ga. App. 21 (2) (145 S. E. 906).

2. The failure of the court to charge on voluntary manslaughter was not error. As was said in the case of Reid v. State, supra, “under the evidence the defendant either shot the prosecutor with intent to kill and without justification, or shot him without intent to kill and without justification, or shot him in self-defense after the prosecutor shot at him. The charge in its entirety was fair to the accused.”

3. The court charged the jury as follows: “If these defendants together, acting together with a common purpose to shoot at J. O. Walker, without any justification and not in order to defend themselves or their lives, if they did not do that, and he was shot at by either one of them and they were acting together with a common purpose to shoot him under those circumstances, then they are both guilty of assault with intent to murder. 'You try the case according to the evidence, and you determine if either one of these defendants shot at Walker with a gun with intent to kill, or without the intent. If with the intent and without any justification, he would be guilty of assault with intent to murder. If he shot at him without the intent to kill but without justification, then he would be guilty of the offense of shooting at another.” It was contended that the use of the word “justification” throughout this charge improperly narrowed the defense and limited it to acts of justification. For no reason assigned was this charge error.

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

Judgment affirmed.

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


text:
    19376.
    COOK v. THE STATE.
    Decided March 5, 1929.
    Rehearing denied April 9, 1929.

      Jackson & Jackson, W. O. Cooper Jr., Wallace & Wallace, for plaintiff in error.

      Charles H. Garrett, solicitor-general, contra.
   Luke, J.

Albert Cook and Homer Eeid were convicted of assault with intent to murder. They brought separate bills of exceptions to this court,. complaining of the overruling of their respective motions for a new trial. The same issues were raised in both motions. Therefore the case of Cook is controlled by the decision in the Reid case, supra.

Judgment affirmed.

Broyles, C. J., and Bloodiuorth, J., concur.


text:
    19380.
    Friedlander v. Feingold.
    Decided March 5, 1929.

      Waldo DeLoache, J. O. Gibson, for plaintiff in error,

      George L. Sabados, contra.
   Bloodworth, J.

1. The special grounds of the motion for a new trial are based on alleged errors in the charge of the court. We find no error in any of the instructions complained of. The charge given was clear and correct.

2. The evidence supports the verdict, which has the approval of the judge who tried the case, and a. new trial was properly refused.

Judgment affirmed.

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


text:
    19391.
    Teasley v. The State.
    Decided March 5, 1929.

      William E. & Gordon Mann, for plaintiff in error.

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

The evidence fully sustains the verdict, and there is no merit in the special exception complaining that the charge of the court was not sufficiently full, and was misleading.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concwr.


author: Bloodwoeth, J.

text:
    19392.
    Norman v. The State.
    Decided March 5, 1929.

      Hugh E. Comb's, for plaintiff in error.

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

The special grounds of the motion for a new trial are but amplifications of the general grounds; the evidence supports the finding of the jury, and the motion for a new trial was properly overruled. Judgment affirmed.

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


text:
    19395.
    Toler v. The State.
    Decided March 5, 1929.

      S. P. New, for plaintiff in error.

      J. A. Merritt, solicitor, contra.
   Luke, J.

1. None of the special grounds of the motion for a new trial discloses error requiring a new trial.

2. The evidence failed to show that the defendant owned, controlled or possessed the land where the still was found, or the premises where distilling apparatus was found, and therefore was not sufficient to sustain the verdict of guilty upon the second count of the accusation. See Atkinson v. State, 25 Ga. App. 176 (102 S. E. 878) ; Alexander v. State, 25 Ga. App. 236 (102 S. E. 880) ; Alexander v. State, 25 Ga. App. 175 (102 S. E. 878).

3. Evidence that intoxicating beer was found at the still-site, together with evidence that the defendant took a drink of whisky from a jug which the officers had in their automobile, does hot sustain the conviction of the defendant on the charge of owning, controlling, and possessing intoxicating liquors. See Graham v. State, 150 Ga. 411 (104 S. E. 248).

Judgment reversed.

Broyles, C. J., and Bloodworth, J., concur.


text:
    19396.
    DUMAS v. THE STATE.
    Decided March 5, 1929.

      Eallie B. Bell, W. A. McClellan, Thomas A. Jacobs Jr., for plaintiff in error.

      Roy W. Moore, solicitor, John Y. Roberts, solicitor, contra.
   Bloodworth, J.

The accusation in this case contained two counts, the first charging that the accused did “unlawfully sell, offer for sale, keep for sale, and barter alcoholic and spirituous liquors,” and the second alleging that she “did then and there unlawfully have and control intoxicating liquors.” There was a general verdict of guilty. This means guilty on both counts. While there is some evidence to support a verdict on the second count, there is none to support a verdict on the first. In Simmons v. State, 162 Ga. 316 (134 S. E. 54), 35 Ga. App. 652 (134 S. E. 202), it was held: “it is error to refuse a new trial where an accusation contains two counts, the first charging a sale of whisky, and the second charging possession of whisky, both charges growing out of the same transaction, where upon the trial the evidence authorizes a conviction upon the second count only and the verdict is a general verdict of guilty.” See Jones v. State, 27 Ga. App. 600 (110 S. E. 37).

Judgment reversed.

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


text:
    19407.
    McCaskell v. The State.
    Decided March 5, 1929.

      H. B. Edwards, for plaintiff in error.

      B. G. Dickerson, solicitor, Little & Dickerson, contra.
   Luke, J.

Bobert McCaskell was convicted of possessing whisky. Iiis motion for a new trial was overruled, and he excepted.

The facts of the case-may be summarized as follows: The defendant was running a restaurant in Valdosta. In that business he employed regularly several persons as help. On a certain afternoon officers drove up to his place of business at about the same time that he did, and told him that they wished to search his place. He consented, and, while the search was going on, “was standing over the show-case” where the whisky was found. Six pints of whisky were found under the show-case, and the show-case was so arranged that it would have to be moved before the whisky could be gotten. After the defendant reached the police station he said that “it was mighty good whisky.” The whisky was found at about four q’clock, and the defendant had been away from his place of business since one o’clock of the same afternoon. He denied that the whisky was his, and said that he knew nothing about it. The defendant gave a boy board and lodging to work about his place. 'The boy was addicted to drink, and had been convicted of larceny after trust. He testified that while the defendant was absent he looked out of a window and saw an unknown man set a paper sack down in some bushes; that he found that the man had left whisky; that he (the witness) put all but one bottle of the whisky under the show-case, and drank enough of the contents of a bottle which he kept to make him drunk. Another witness, who worked at the restaurant, testified that, she saw the boy have some whisky, and ordered him to take it away. Several employees were in the defendant’s place.of business when the whisky was found, and the public had access to it.

Had we been acting as jurors we might have reached a different conclusion from that expressed, by the verdict; but we can not say that there was no evidence to authorize the verdict, which has the approval of the trial judge. We therefore hold that the court did not err in overruling the general grounds of the motion for a new trial.

In ground 4 the defendant contends that the court erred in charging that if whisky is found in a person’s place .of business, the law presumes it to be in his custody and control, but that this is a presumption of law which “must yield to the actual facts of the case;” and that if the jury believed that the whisky was found at ’the defendant’s place of business, they might convict. In immediate connection with the excerpt complained of the court instructed the jury that if they believed that the whisky was put in the defendant’s place of business in his absence, “and that he knew nothing about it and had nothing to do with it, the presumption of law would be overcome, and your verdict should be one of not guilty.” In connection with its context the excerpt complained of is perfectly fair, and is not subject to the criticism that it was not adjusted to the facts of the ease.

In ground 5 complaint is made that the court did not charge the jury in language of the decision in Sewell v. State, 11 Ga. App. 754 (75 S. E. 1135), set out in that ground, which was in eifeet that the evidence conclusively showed that the liquor was placed in the defendant’s place of business without his knowledge or consent, that he had nothing to do with it, and that “the verdict of conviction was without evidence to support it.” Had the judge given the charge requested, he would have usurped the right of the jury to pass upon the credibility of the witnesses and the weight of the evidence. Morever, such a charge would have been tantamount to the direction of a verdict for the defendant; and since it is not error to refuse to direct a verdict, it could not be error to refuse to give the requested charge.

Ground 6 complains that the court’s charge was not adjusted to the facts of the case, and that the judge failed to charge the law laid down in several cases cited in the exception. The charge of the court was full and fair and covered the law applicable to the case, including the law of circumstantial evidence as laid down in our code; and, in the absence of any timely and appropriate request for fuller-instructions, the charge needed no amplification.

Ground 7 complains that the court erred in failing to give in charge the headnote in the case of Smith v. State, 5 Ga. App. 834 (63 S. E. 938), as requested. Waiving the fact that no request to charge was made in writing, the headnote is not properly phrased for a charge, particularly for a charge in the case at bar. Besides, the principles of law contained in the request were sufficiently covered by the charge given.

Ground 8 is in substance that the court did not state the contentions of the defendant in sufficient detail. The charge was full and fair, and, in the absence of a timely and appropriate written request, it does not lie in the mouth of the defendant to complain that it should have been more elaborate.

Judgment affirmed.

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


text:
    19411.
    Cook v. The State.
    Decided March 5, 1929.

      E. M. Smith, for plaintiff in error.

      Franlc B. Willingham, solicitor-general, contra.
   Bloodworth, J.

The evidence authorized the verdict, and the motion for a new trial, which was on the general grounds only, was properly overruled. Judgment affirmed.

Broyles, O. J., and Lulce, J., eoneur.


text:
    19439.
    REEVES v. THE STATE.
    Decided March 5, 1929.

      Q. W. Bussell, D. E-. Griffin, for plaintiff in error.

      T. Hoyt Da/uis, solicitor-general, contra.
   Luke, J.

Wyatt Reeves, convicted of possessing intoxicating wine, excepted'to the overruling of his motion for a new trial, based upon the general and ten special grounds.

It appears from the testimony of the arresting officer that on August 30, 1928, he went to the defendant’s home and found, in a room adjoining the one the defendant was in, two ten-gallon kegs of intoxicating wine, and that the defendant stated that it was his wine, and that he had it for his own use. The gist of the evidence for the defendant was to the effect that the contents of the kegs consisted of fresh grape-juice when found by the officers, and that if it had fermented at all it had done so between the time it was found and October 28, 1928, the day of the trial. It is obvious that the court did not err in overruling the general grounds of the motion for a new trial.

Hnder the well-established rule that an objection to the admission of evidence that it is “irrelevant and immaterial” is too general to be considered by this court, grounds 4, 5, and 6 present nothing for our consideration. See Staples v. State, 37 Ga. App. 97 (3) (139 S. E. 94).

In ground 7 complaint is made that the court erred in declining to allow the defendant to put in evidence “all the contents of the two kegs,” after the solicitor-general had introduced a gill poured from the top of one of the kegs. It appearing that the small quantity of the contents admitted in evidence was admitted after the keg had been shaken, there can be no merit in the contention that alcohol, being lighter than water, would be mostly at the top of the kegs.

This case does not depend entirely upon circumstantial evidence, -and in the absence of any written request so to do, the court did not err failing to charge the law of circumstantial evidence. See Paramore v. State, 161 Ga. 166 (8) (139 S. E. 773); Thomas v. State, 37 Ga. App. 833 (3) (143 S. E. 195). Under this law, there is no merit in grounds 8 and 9.

Ground 10 complains of refusal to charge to the effect that if at the time the defendant was found in possession of the liquid the contents of the kegs had not fermented to the extent of being intoxicating, the defendant should be acquitted. The court did instruct the jury that “if you believe he was in possession of liquor, but that the same was not of such kind and character at the time (italics ours) which if drunk to excess would produce intoxication, you should find the defendant not guilty.” In the light of the charge given, the defendant’s case could not have been hurt in any way by the refusal to charge.

It not appearing from ground 11 that any objection, or any motion to declare a mistrial was made, on account of the alleged prejudicial remarks of the trial judge, this ground discloses no reversible error. Where, as in this case, no reason appears why counsel could not have taken some affirmative step to avoid the alleged harmful effect of the court’s remarks, such remarks do not require a new trial. See Moore v. McAfee, 151 Ga. 370 (11) (106 S. E. 374). What has been said as to this ground applies to ground 13.

Ground 13 can not be considered because it has not the unqualifiecl approval of the trial judge. See Brown v. State, 37 Ga. App. 112 (2) (139 S. E. 112).

Judgment affirmed.

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