text:
    16862.
    THOMOSON v. GARNER.
    The petition as amended failed to show a compliance by the plaintiff with the obligation imposed upon him by the executory contract sued upon; and consequently the court did not err in dismissing the suit, on demurrer.
    Indemnity, 31 O. J. p. 465, n. 85,
    Decided May 15, 1926.
    Complaint; from Gwinnett superior court—Judge Stark. September 8, 1925.
    Application for certiorari was denied by the Supreme Court.
    Thomoson sued Garner upon the following contract: “Know all men by these presents that the undersigned, being stockholders in the Bank of Lawrenceville and desiring to open and operate said bank for the purpose of saving depositors and the stockholders as fully as possible without loss to either, hereby acknowledge ourselves bound untó'T. S. Thomoson in the sum opposite our names hereafter attached to this instrument, the same to be liquidated and determined as hereinafter set out. In order to make the Bank of Lawrenceville solvent and to relieve the capital stock from being impaired, it is necessary for the stockholders of said institution to voluntarily raise an assessment of sixty per cent, of the capital stock of said bank, or fifteen thousand dollars, and in order that said assessment may not have to be made and the money raised, the said T. S. Thomoson has agreed to guarantee the payment of fifteen thousand dollars of the classified worthless paper held by said Bank of Lawrenceville, and in order to secure that guarantee will place with said Bank of Lawrenceville time-deposit certificates amounting to fifteen thousand dollars, which guarantee will relieve the necessity of a voluntary assessment of the stockholders at this time and secure the opening of the bank for business; and in consideration of the said Thomoson doing this, the undersigned stockholders of the said Bank of Lawrenceville agree to indemnify the said Thomoson against any loss he may sustain in the collection of said papers which he secures to the extent of the shares of stock placed opposite our names, and for the purpose of collateral we agree to transfer said stock to the said Thomoson until the loss, if any, is fully paid,, and each agrees to pay proportionately his or her share of loss, if there should be loss, in proportion to the number of shares shown opposite our names. It is understood and agreed that when said paper (notes) which the said Thomoson secures is collected it shall go to the credit of this obligation, and such papers as may not be collected shall finally become the property of the undersigned when the said Thomoson has been fully satisfied and indemnified against loss by securing said bank paper as aforesaid; and should the said Thomoson sustain no loss in securing said bank paper, then this obligation to be void, otherwise of full force and effect. This obligation shall become due and payable in three equal divisions, and should there not be a sufficient amount collected to pay one third of said amount by January 1, 1922, then and in that event we agree to pay the said Thomoson 8 per cent, interest on any deficiency for the time it may run, and the same on each of the other payments which' are due January 1, 1923, and January 1, 1924. Now should the said undersigned, or their executors, administrators well and truly discharge the obligations under this contract, then this obligation to be void. Given under the hand and seal of each party hereto this 3rd day of June, 1921.” The defendant signed as holder of six shares.
    The plaintiff alleged, in substance, that he complied with all the terms and conditions of the contract, and that the Bank of Lawrenceville, in which the defendant owned six shares of stock, was reopened and the defendant became liable to him under said contract; that, the amount due him by the defendant was $120 and interest; and that he (plaintiff) was not able to collect from the notes specified in the contract so as to reimburse himself for the money and time certificates advanced. The defendant demurred generally and specially, contending that the petition failed to set forth a cause of action; that it was nowhere alleged that the plaintiff made good his guaranty by paying to the bank $15,000 as provided in the contract, which would have been necessary before he would have sustained any loss that would have entitled him to sue therefor; that it was not alleged that the plaintiff made any effort to collect the classified worthless paper referred to in the contract, or that he had exhausted his legal remedies in an effort to collect the same; that the petition alleges a loss upon time certificates which he had advanced, when the contract shows on its face that it was never contemplated that the defendants and the other signers of the contract were to be liable for any loss that might be sustained, by the plaintiff upon the time certificates placed with the bank as security for his guaranty, but, on the contrary, the defendant and the other signers were to be liable to the plaintiff for their pro rata share of whatever loss he might sustain, should there be any loss, in case the plaintiff paid to said bank $15,000 in fulfilment of his contract of guaranty and was unable to collect the papers for the payment of which he stood as guarantor ; that the petition failed to show how much loss was sustained for money advanced, and when and for what purpose the money was advanced, and how much loss was sustained on account of the advancement of time certificates, and when the time certificates were advanced and the actual value thereof, and whether they were advanced as security for his guaranty; that the petition nowhere alleged that the plaintiff complied with his contract by paying into said bank $15,000 or any other sum after the contract was signed, or at any time that it could have been applied to the payment of said notes as per his contract as guarantor; and that it was not alleged that said bank had ever been paid by the plaintiff the said $15,000, or anything of the value of $15,000, upon his said contract.
    An amendment to the petition was filed, in which it is not alleged that the terms of the contract sued on were in any way altered or changed, but the amendment appears to interpret the meaning of the contract and sets up facts alleged to be in compliance therewith. In this amendment it is alleged that in an effort to reopen the said bank without the stockholders having to put up $15,000, it was arranged between thé stockholders and the State superintendent of banks that if the plaintiff would place with the bank $15,000 worth of time certificates on the said bank, that amount of time certificates would be charged out of the liabilities of the bank, thereby reducing its liabilities and in this way making the bank solvent and leaving its capital stock unimpaired so that it could reopen for business; that pursuant to said contract the plaintiff turned over to the bank $15,000 of time certificates which he held against it which were accepted by the bank and charged off its liabilities and cancelled, and that the bank reopened and resumed business; that the defendant was a stockholder and accepted the benefits of this arrangement, and the plaintiff was out said amount of $15,000 time certificates which he held; that the total amount of the classified worthless paper of said bank turned over to the plaintiff under said contract after he had placed with it time certificates amounted to $20,779.23; that these notes were turned over by the plaintiff to the bank for collection and credit of amounts collected on said $15,000 obligation as aforesaid, and a trust receipt was taken from the bank when it reopened; that the plaintiff, co-operating with the bank, did everything in his power to collect said notes; that the bank collected on said notes $1497.02 during 1921 and 1922; that on January 1, 1922, the bank paid to the plaintiff $5,000 on said obligation which was due at that time, using the $1497.02 collected on said notes, and obtaining the balance from some source unknown to the plaintiff ; that since that time the plaintiff has collected $40, which together with the $1497.02 is all that was ever collected on said notes; that the defendant, being a stockholder of said bank and operating the same through its employees and agents, is responsible for all the bank did in the transaction, the same as if done by him personally, and that the plaintiff complied with every obligation of said contract and the defendant is liable to him as charged. To the petition as amended the defendant renewed his demurrer; and the demurrer being sustained, the plaintiff excepted.

      M. D. Irwin, I. L. Oakes, for plaintiff.
    6?. F. <S¡ John I. Kelley, for defendant.
   Jenkins, P. J.

(After stating the foregoing facts.) The suit being on an executory contract, the question to be determined is whether the petition shows that the plaintiff has himself complied with the obligations imposed upon him by the agreement. The contention which appears to be mainly urged by plaintiff is “that what was done as set forth in the petition and the amendment was a full compliance with the contract and the equivalent of paying $15,000 in cash, because if the bank was made solvent as set forth in the contract, there would be no difference in plaintiff paying into the bank $15,000 in cash and turning over to the bank $15,000 worth of its own obligations which were accepted as cash and cancelled by the bank; because if $15,000 had been turned over to the bank in cash, the same money could and should have been used by the bank in paying and retiring its own obligation. Besides, even if there should have been a slight departure from the exact terms of the contract, the defendant, as a stockholder in the bank, would be bound by what the bank did, and could not accept plaintiffs $15,000 in time certificates and have the same cancelled and retired as an obligation against the bank, and have the bank reopened, and then claim that plaintiff should not be reimbursed because time certificates were used and not actual cash.” The contention of the defendant in this respect is that “instead of paying the $15,000 which he guaranteed to pay, the plaintiff tried to turn the contract around and make it one whereby defendant and the other signers of the contract were to guarantee'his time certificates in a defunct, crippled bank to be worth one hundred cents in the dollar. In other words, instead of complying with his contract, he sought to pour his time certificates, which were worth less than par, in the tills of the bank, and then turn on defendant and say, ‘You pay me one hundred cents in the dollar for those certificates.5 55

The suit being on contract, we do not think that any change in the terms thereof, even though arrived at bjr the plaintiff and the officials having active management of the bank, would be binding upon the defendant unless such a novation of the agreement was agreed to by him. The question therefore is whether, as alleged by the petition, the plaintiff did actually comply with the obligations assumed by him under- the signed agreement. We agree with the contention of the plaintiff that the use of the pre-existing time certificates of deposit could be taken as a compliance with the provisions of the agreement that the plaintiff, “in order to secure that guarantee, will place with said Bank of Lawrenceville time deposit certificates amounting to fifteen thousand dollars.” The contract itself sets forth that the making good of the described assets in the amount of $15,000 would make the bank solvent and permit it to be reopened; and if it had been intended to compel Thomoson to pay in $15,000 of new money to secure his guaranty of the bad notes, and thus incidentally furnish additional ready cash for the bank to operate on, it would have been an easy matter to so provide. The expressed purpose of the contract does not, however, purport to require Thomoson to provide ready cash for the use and benefit of the bank; but the whole scheme for its rehabilitation, as expressed by the signed agreement, was that in order to avoid the necessity of the stockholders paying in $15,000 of new assets in the form of money, the assets of the bank were to be increased $15,000 by the act of Thomoson in guaranteeing the payment of $15,000 of the bank’s discredited and supposedly worthless assets, thus increasing the bank’s actual assets in that amount and thus making good the impaired capital. The contract further required that Thomoson secure his guaranty of the supposedly bad paper, and provided how this should be done, to wit, by placing “with said Bank of Lawrenceville time deposit certificates amounting to $15,000,” but the instrument sued on nowhere says that Thomoson is to provide new ready cash for the future operation of the bank, and, as stated, fails to require that the time certificates to be pledged as security for Thomoson’s guaranty should represent a deposit of new money. According to the contract, all that was required to restore the impaired capital and make the bank solvent and enable it to be reopened was changing $15,000 of bad assets into good assets, by virtue of Thomoson’s secured guaranty thereof.

The plaintiff unquestionably used for the common'good of the bank, its depositors and stockholders, his personal assets held by the bank, and it is with some reluctance that we feel compelled to hold that he can recover nothing in the suit maintained on the contract. The executory agreement plainly provides that the impaired capital is to be restored by the plaintiff increasing the assets of the bank by making good $15,000 worth of bad assets. He was to do this by guaranteeing their payment and securing his guaranty in the manner set forth by the contract. Whatever rights, if any, the plaintiff might have against the fellow stockholders in restoring the impaired capital in the manner resorted to, he can not recover on the executory contract sued on, unless he himself shows a compliance on his own part with the obligations therein assumed by him. He agreed to guarantee the bad paper belonging to the bank and to secure his guaranty. The defendants agreed to make good their pro rata share of any losses he might suffer as guarantor by virtue of such guaranty. In point of fact, the petition shows that he did not become guarantor upon this paper at all; but, on the contrary, it shows that he used his time-deposit certificates to buy the paper outright, and sought to collect it as his own property, using the bank merely as a collecting agent, without the bank being concerned as to the success or failure of its efforts as a collecting agent, save in the performance of its duty in its fiduciary capacity. His suit is to recover -what he failed to collect on notes belonging to himself. Except when in contravention of law, parties may contract as they please, and even though the bank as collecting agent for an individual may be charged with the same degree of diligence as would be expected in the collection of its own assets, since the defendants had an interest in' the collection of the discredited paper they may have preferred that the bank, as a going concern, collect the notes from its own customers as papers belonging to itself, rather than undertake as agent for an individual to collect them in a mere fiduciary capacity. There might very well be a practical difference in the result. At any rate, the executory contract sued on expressly pointed out the method of procedure, and in a suit based thereon the signers of the contract have a right to stand on its terms.

Judgment affirmed.

Stephens and Bell, JJ., concur.


source: Caselaw Access Project

author: Jenkins, P. J.

license: Public Domain

text:
    16868.
    Ponsell v. Citizens & Southern Bank.
    Appeal and Error, 4 O. J. p. 1108, n. 74.
    Banks and Banking, 7 O. J. p. 667, n. 3 New; p. 670, n. 42; p. 687, n. 99.
    Courts, 15 C. J. p. 963, n. 45.
    Judgments, 34 C. J. p. 799, n. 78.
   Jenkins, P. J.

1. “It is well settled that if the court upon demurrer holds that the petition sets forth a cause of action, this decision, so long as it stands unreversed, is res adjudicata in the subsequent stages of the ease. Kimbro v. Railway Co., 56 Ga. 187; Turner v. Cates, 90 Ga. 742 (2) (16 S. E. 971); Ellis v. Almand, 115 Ga. 336 (2) (41 S. E. 642); Ga. Northern Ry. Co. v. Hutchins, 119 Ga. 505 (46 S. E. 659). It has also been held that a judgment on demurrer, until reversed, concludes the parties on all questions necessarily involved in the decision. Ga. Northern Ry. Co. v. Hutchins, supra. It would seem to follow from this that it would not conclude upon any question not necessarily involved in the decision on the demurrer.” McElmurray v. Blodgett, 120 Ga. 9, 15 (47 S. E. 531).

2. When this case was before this court on exceptions to the overruling of the general demurrer (Citizens and Southern Bank v. Ponsell, 33 Ga. App. 193, 125 S. E. 775), the effect of the ruling was that the trial court would not have been authorized to hold that the reasons assigned by the plaintiff in exculpation of her failure to notify the defendant bank that the checks paid by it on her account were forgeries, within 60 days after the return to her of the vouchers representing such payments, as required by the banking act of 1919 (Ga. L. 1919, p. 209), were not inadequate as a matter of law. The previous ruling of this court did not go to the extent of holding that the circumstances pleaded in extenuation of such failure on the part of the plaintiff were necessarily such as would relieve her from the penalty prescribed. While it is true that the statute charges the depositor with a duty of notifying, it does not undertake to say what facts or circumstances, if any, would be sufficient to obviate the penalty of such dereliction. And, under the former decision, it is for the jury to say whether the facts pleaded and proved by the plaintiff, in exculpation of her dereliction, were such as would absolve her from the penalty prescribed. Consequently, the overruling of the demurrer to the petition does not mean that the plaintiff is absolutely entitled to récover if she proves her case as laid; for a general demurrer should be overruled in an action based on facts and circumstances justifying the plaintiff’s admitted negligence when the jury, from the facts alleged, would be authorized to infer a justification for negligence, though they would not be bound to do so. See McDuffie v. Ocean Steamship Co., 5 Ga. App. 125, 129 (62 S. E. 1008).

Decided May 15, 1926.

Action for money bad and received; from city court of Savannah—Judge Eourke. September 11, 1925.

Farr & Powell, W. H. Bedgood, Gonyers & Gowen, for plaintiff.

Hitch, Denmark & Lovett, for defendant.

3. The jury, under instructions of the court fairly submitting such question, having found that the facts and circumstances alleged and proved were not sufficient to justify the failure to give the notice as required by the statute, this court is not authorized to set their finding aside on the theory that the verdict is in conflict with the previous ruling of this court. Moreover, the plaintiff has not made it to appear by the proof submitted that the notice finally given to the bank, nearly three years after knowledge of the alleged forgeries by the plaintiff’s husband, was within 60 days from the time that the husband abandoned the plaintiff and left the State. Consequently, the proof submitted by the plaintiff in justification of her neglect to comply with the terms of the statute, consisting of duress on the part of her husband while living with her, might for this reason have been inadequate, and the verdict in favor of the defendant could be sustained also on that theory.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    17026.
    Bowman v. Georgia State Bank.
    Tenancy in Common, 38 Cyc. p. 73, n. 93.
   Jenkins, P. J.

Where one of two tenants in common, holding an equal interest with the other, rents from the other his half interest in the land, and in the rent note embodies a provision undertaking to give to the payee a first claim on all farm produce raised on the “entire'premises for the ensuing year,” this provision is ineffectual to create a lien on the produce to be raised on the undivided interest of the premises belonging to the maker of the note. Stephens v. Tucker, 55 Ga. 543, 544; Hall v. State, 2 Ga. App. 739 (59 S. E. 26); Ga. L. 1924, p. 125. Accordingly, in a contest over the crop raised on the entire premises the court did not err in apportioning one half of the crop to the payee of the note, representing the landlord’s lien on the crops, and the remaining half to one who had acquired a valid lien on the crops, inferior to the landlord’s lien.

Decided May 15, 1926.

Money rule; from city court of Dawson—Judge Marlin. November 5, 1925.

M. G. Edwards, for plaintiff in error.

22". A. Willdnson, 22. 22. Jones, contra.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    17047.
    Kimball v. Kimball.
    Estoppel, 21 C. J. p. 1229, n. 70.
    Limitation of Actions, 37 C. J. p. 392, n. 89.
    Decided May 15, 1926.
    Complaint; from Walton superior court—Judge Fortson. November 7, 1925.
    STATEMENT OÉ PACTS BY JENKINS, P. J.
    Mrs. Anna C. Kimball sued J. EL Kimball in Walton superior court, alleging substantially that the defendant is a resident of Florida, but at present is in Walton county, Georgia; that he is indebted to her in the snm of $2,000 for the maintenance and support of his and her two minor sons during their minority, which he failed to provide; that for the last nine years he has resided in Florida; that in 1913 he obtained a total divorce from the plaintiff, but no alimony was awarded to her or their said minor children; that the sum sued for represented board and maintenance for four years at the rate of $500 per year, and that he refuses to pay the same. The plaintiff filed an amendment alleging that one of the minors, Carl Kimball, became of age on January 23, 1910; that John Kimball became of age on November 12, 1914, and that the plaintiff furnished board to him for the years 1910, 1911, 1912, 1913, and ten and a half months in 1914, for which $20 per month was a reasonable charge. The defendant demurred to the petition, on the grounds that no cause of action was set forth, and that the claim was on its face barred by the statute of limitations. The court overruled the demurrer, and the defendant filed exceptions pendente lite, and now assigns error thereon. The trial of the ease resulted in a verdict for the plaintiff for $450 principal, and $346.50 interest to the date of the judgment. The deféndant’s motion for a new trial was overruled, and he excepted. He contended that the court erred in refusing to allow him to introduce the record of a previous suit against him for alimony, filed by the same plaintiff. It appears that the plaintiff had previously filed a suit against him, claiming alimony for her own support and that of their minor children; that in that proceeding the decree of divorce which had been obtained by the husband was attacked by her on the ground of fraud, it being alleged by her that in the divorce proceeding he alleged that she was a nonresident of the State, whereas he knew that she was not a nonresident. It. appears that in the alimony action it was adjudicated that she could not thus collaterally attack the divorce decree; and it appearing that at the time of the alimony suit she was not the wife of the defendant, she was denied a right to alimony. The contention of the defendant in the instant case was that the record of the alimony case should have been admitted in evidence, and that the plaintiff’s contention in that case as to the invalidity of the divorce was binding upon her, and estopped her from suing as a divorcee. He contended that the court erred in failing to charge, in connection with the charge upon the statute of limitations, that his nonresidence by removing from this State and residing in another State would not toll the statute of limitations, if it appeared that he had any property within this State upon which an attachment could be levied. There was evidence tending to establish that he resided out of the State of Georgia for a period of eight years between 1910 and 1924.
   Jenkins, P. J.

1. A defendant can not claim the benefit of an estoppel on account of contentions made by the plaintiff in a former suit, instituted against the same defendant, where it appears that the defendant resisted the previous contentions and in the former suit obtained an adjudication in his favor adversely thereto.

2. - “If the defendant, in any of the cases herein named, shall remove from this State, the time of his absence from the State, and until he returns to reside, shall not be counted or estimated in his favor.” Civil ■ Code (1910), § 4378. The fact that the defendant might have owned property within the State during the period of his nonresidence does not operate to prevent the tolling of the statute.

3. The evidence authorized a recovery within the amount accorded by the verdict for principal and interest, there being evidence sufficient to establish the nonresidence of the defendant, such as would bring within the statute of limitations the items for 1912 and 1913 recovered on in a suit filed in August, 1924.

Judgment affirmed.

Stephens and Bell, JJ., concur.

B. L. & II. 0. Cox, for plaintiff in error.

Orrin Roberts, contra.


author: Bkoyles, C. J.

text:
    16823.
    Lumbermen's Mutual Casualty Co. et al. v. Chandler.
    Workmen’s Compensation Acts’, C. J. p. 100, n. 76; p. 121, n. 24 New.
    Decided June 15, 1926.
    Appeal; from Warren superior court—Judge Perryman. August 22, 1925.
    Underwood, Pomeroy & Haas, E. Smythe Gambrell, for plaintiffs in error.

      M. L. Felts, contra.
   Bkoyles, C. J.

1. Upon an application to the Industrial Commission of Georgia for an award of damages questions not raised upon the hearing before one of the commissioners, or on an appeal to the full commission, can not be raised in the superior court. Integrity Mutual Casualty Co. v. Hankins, 33 Ga. App. 339 (126 S. E. 554). Under this ruling the contention of the plaintiff in error that no proper claim was filed as required by law can not be considered.

2. “Under the provisions of the Georgia workmen’s compensation act, limiting the pecuniary liability of the employer for medical, surgical, and hospital expenses to the amount of $100, the Industrial Commission of Georgia has no authority to award more than that amount for such expenses in a case where the insurance carrier made no agreement that it would be liable for more than the statutory amount. Acts 1920, pp. 167, 181, secs. 26, 27.” Lumbermen’s Mutual Casualty Co. v. Chandler, 162 Ga. ( 133 S. E. 237). Under this ruling and the facts of the instant ease, the award of $375 for medical and hospital expenses was excessive and unauthorized.

3. The other assignments of error in the bill of exceptions are without substantial merit; and the award of the industrial commission, with the exception above stated, was authorized by the evidence. It is directed that the defendant in error write off from the judgment below the sum of $275, the illegal portion of the amount awarded for medical and hospital expenses.

Judgment affirmed, with dwection.

Luke and Bloodworth, JJ., concur.


author: Bloodwobth, J.

text:
    17065.
    Riggins v. Scott.
    Appeal and Error, 4 C. J. p. 832, n. 47.
    Decided June 15, 1926.
    Trover; from city court of Blackshear—Judge Mitchell. October 30, 1925.

      3. F. Memory, for plaintiff.

      3. Thomas Memory, for defendant.
   Bloodwobth, J.

The verdict rendered not having been absolutely demanded by the evidence, and this being the first grant of a new trial, this court will not interfere. Civil Code (1910), § 6204; Carr v. Carr, 157 Ga. 208 (121 S. E. 227), and cit.; Rooks v. Stanaland, 33 Ga. App. 9 (4, 5) (124 S. E. 904).

Judgment affirmed.

Broyles, G. J., and Luhe, J., concur.


text:
    17079.
    Ellzy v. Ocean Steamship Company of Savannah.
    Decided June 15, 1926.
    Action for damages; from city court of Savannah—Judge Freeman. October 29, 1925.

      Cobb, Bright & Cobb, for plaintiff.

      A. B. Lawton Jr., for defendant.
   Bloodwobth, J.

The court committed no error in excluding evidence nor in thereafter granting a nonsuit.

Judgment affirmed.

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


author: Bloodwokth, J.

text:
    17128.
    BELL v. THE STATE.
    1. The rulings on admissibility of evidence were not erroneous for any reason assigned.
    2. The discretion of the judge in refusing to declare a mistrial was not abused.
    3. There was no error in refusing the requests to charge.
    4. The evidence supported the verdict.
    Appeal and Error, 4 C. J. p. 827, n. 8.
    Intoxicating Liquors, 33 C. J. p. 761, n. 53; p. 764, n. 1; p. 765, n. 15.
    Trial, 38 Cye. p. 1711, n. 19.
    Decided June 15, 1926.

      Possessing and selling intoxicating liquor; from city court of Macon—Judge Hall. January 9, 1926.

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

      Boy W. Moore, solicitor, contra.
   Bloodwokth, J.

For no reason alleged did the court err in allowing to go to the jury the evidence the introduction of which is complained of in grounds 1, 2, and 3 of the motion for a new trial. Nor did the court err in refusing to exclude the evidence of which complaint is made in the 4th ground.

This court will not say that the judge who tried the case abused his discretion in refusing to declare a mistrial because of certain statements made in the argument of the prosecuting attorney, and of which complaint is made in grounds 5, 6, and 7 of the motion. We will not say that the 'statements were not legitimate deductions from the evidence.

In the light of the evidence and the charge given, the court did not err in refusing to give in charge to the jury the several instructions requested by counsel for plaintiff in error.

The accusation contained two counts; the first charging the defendant with selling, and the second with possessing, intoxicating liquors. In Taylor v. State, 5 Ga. App. 237 (62 S. E. 1048), the 5th headnote is as follows: “That one accused of unlawfully selling intoxicating liquors is in possession of quantities of liquors, beer, bottles, jugs, and measures, is a circumstance which, in connection with other circumstances, will authorize the inference that the owner is engaged in the unlawful sale of intoxicants. Such evidence is admissible though obtained by unlawful seizure.” Under the foregoing ruling we can not say that there is no evidence to support the conviction on the first count. There is ample direct evidence to support the finding of the jury on the second count. The court did not err in overruling the motion for a new trial.

Judgment affirmed.

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


author: Bloodworth, J.

text:
    17183.
    COLONIAL TRUST CO. v. FIREMAN’S FUND INSURANCE CO.
    1. The policy of insurance was issued to R. C. Shaw who had no title to the property and therefore was “without insurable interest and legally incapable of taking out a policy” on the property covered by the policy. As R. C. Shaw was not the owner of the property insured, the principle announced in Southern States Fire &e. Ins. Oo. v. Napier, 22 Ga. App. .361 (2) (96 S. E. 15), is not applicable to this case.
    2. Even should it be conceded that the petition contains all the elements necessary for a suit on an “ account stated,” there is no evidence to show that the Fireman’s Fund Insurance Company had at any time ever agreed to pay the amount fixed by the adjuster as its part of the loss.
    Accounts and Accounting, 1 C. J. p. 728, n. 94.
    Fire Insurance, 26 O. J. p. 35, n. 42; p. 438, n. 45.
    Decided June 15, 1926.
    Complaint on fire policy; from Tift superior court—Judge Eve. January 7, 1926.
    R. C. Shaw secured two policies of insurance on a dwelling house which was owned by his wife; one with the Fire Association of Philadelphia for $2500, and the other in the Fireman’s Fund Insurance Company for $1000. To the latter policy was attached what is known as a “New York Standard Mortgagee Clause,” with the loss payable to the Marietta Trust & Banking Company, to which company a deed to the property insured had been given by Robert M. Smith to secure a loan. Smith subsequently conveyed the property to Mrs. Shaw, and she assumed the loan. The record shows also that all rights of the Marietta Trust & Banking Company to the said property were conveyed to the Colonial Trust Company, which was to act as trustee for the Marietta Trust & Banking Company. The dwelling was burned. An adjuster fixed the amount of the loss at $1971.' The Fire Association of Philadelphia paid its proportionate part of the loss. The Fireman’s Fund Insurance Company refused to pay, and suit was brought for $563.14, the proportionate part of the loss of the Fireman’s Fund Insurance Company, by “The Colonial Trust Company of Atlanta, Ga., trustee for the Marietta Trust & Banking Company.” It was agreed by counsel representing both plaintiff and defendant that the judge “should determine the matters upon the law and evidence.” The court directed a verdict for the defendant, and plaintiff excepted.

      C. A. Christian, for plaintiff.

      Smith, Hammond & Smith, C. W. Fulwood, for defendant.
   Bloodworth, J.

(After stating the foregoing facts.) In the order refusing to the plaintiff another trial, the judge said in part: “It is apparent that R. C. Shaw, the husband of Mrs. R. C. Shaw, the owner of the premises insured, in the taking out of the policy was acting in the interests of the Marietta Loan & Trust Company, the beneficiary in the loss-payable clause. This being true, the Marietta Loan & Trust Company was under legal obligation, and in the exercise of reasonable diligence could have known that R. C. Shaw, in whose name the policy was written and who evidently represented himself to [be ?] the owner of the equity in the real estate insured, was not such in fact and had no interest in the property. The insurance company, the defendant in this case, was under no legal obligation to investigate; they placed in the hands of Shaw, who represented himself to be the owner or one with an insurable interest, a policy containing a stipulation that misrepresentation as to ownership would mean cancellation of the policy. Shaw delivered the policy to the Marietta Trust & Loan Company, and it was their duty to have determined the correctness of his representations of insurable interest. They failed to do this at their own risk, and as Shaw was acting for them, was without insurable interest, and legally incapable of taking out a policy, the loss must fall on the principal.” We agree with the judge in the conclusion that Shaw “was without insurable interest and legally incapable of taking out a policy” on the property insured. However, the plaintiff insists “that even if R. C. Shaw had no interest in the property, but that the title thereto was in his wife instead, the legal title being in the plaintiff in this case, they would not be affected (since the New York Standard clause was attached to the policy) by any misrepresentation made to the company on the part of Shaw;” and as supporting this contention they cite Southern States Fire & Casualty Ins. Co. v. Napier, 22 Ga. App. 361 (supra), and Equitable Fire Ins. Co. v. Jefferson Standard Life Ins. Co., 26 Ga. App. 241, 246 (105 S. E. 818). We can not agree with this contention of counsel, or that this contention is supported by the authorities cited. Those cases are differentiated from the one now under consideration by the fact that in each of them the property was insured by the owner thereof.

Even should we concede that the petition contains all the elements necessary for a suit on an “account stated,” there is no evidence to show that the insurance company at any time ever agreed to pay the amount fixed by the adjuster as its part of the loss. It is true that 0. A. Christian, the attorney who represented the plaintiff, swore that R. A. Peeples, an insurance adjuster, fixed the amount of the loss and prorated it between the two policies on the property, and that “this amount was agreed upon on behalf of the plaintiff in this case, and he (Christian) so stated to R. A. Peeples when the adjustment was made.” This does not show that the adjuster had any authority to bind the insurance company. On the contrary, Mr. Peeples swore that he was not the agent of the Fireman’s Fund Insurance Company, that he was an independent adjuster, that he had no authority to bind the company to pay any specific amount, that when he had adjusted a loss he could only recommend that.amount to the company, and that he had nothing to do with the payment of the loss. There is nothing in this testimony that shows that the adjuster had any power or authority to bind the insurance company, or that he undertook to bind it by any promise to pay the amount fixed as its pro rata part of the loss. Nor is there in either of the telegrams in the record anything which would bind the Fireman’s Fund Insurance Company to pay any loss on the property insured.

The court-did not err in directing a verdict for the defendant, nor in thereafter refusing to the plaintiff a new trial.

Judgment affirmed.

Broyles, 0. J., and Lulce, J., concur.


text:
    17191.
    Jones v. Sikes et al.

    Appeal and Error, 3 O. J. p. 1370, n. 33, 34; 4C. J. .p. 838, n. 90; p. 866, n. 51; p. 969, n. 56.
   Bloodwobth, J.

1. “An assignment of error complaining of tire admission of documentary evidence over objection urged at the time it was admitted should set forth literally or in substance the evidence objected to, or identify it as an exhibit attached and made a part of the bill of exceptions. If it fails to do either, the assignment of error will not present any question for consideration. Bacon v. Howard, 152 Ga. 616 (2) (110 S. E. 888) ; Callaway v. Beauchamp, 140 Ga. 207 (2) (78 S. E. 846).” McBurnette v. Huff, 154 Ga. 452 (114 S. E. 578). See also McCollum v. Thomason, 32 Ga. App. 160 (8), 163 (122 S. E. 800); Webb v. State, 13 Ga. App. 734 (4) (80 S. E. 14). This ruling disposes of special grounds 4, 6, and 7 of the motion for a new trial.

Decided June 15, 1926.

Claim; from Tattnall superior court—Judge Sheppard. March 26, 1925.

H. B. Kimbrough, L. G. Anderson, P. M. Anderson, for plaintiff in error.

J. Saxton Daniel, contra.

2. In ground 5 of the motion the court is alleged to have erred in allowing certain evidence to go to the jury. There is no merit in this ground. This evidence could not have influenced the jury to return a different verdict, and was harmless. Indeed, in the ground itself it is stated that this evidence is “immaterial and illustrates no issue in the trial.”

3. When the pleading's, the evidence, and the entire instructions to the jury are considered, there is nothing in the excerpt from the charge of which complaint is made in the motion that requires the grant of a new trial.

4. A ground of the motion alleges that a member of the jury that tried the case was related within the prohibited degree to one of the plaintiffs. Under the counter-showing made by the opposite party, this court can not say that the trial judge abused his discretion in overruling the motion. See Buchanan v. State, 118 Ga. 751 (9) (45 S. E. 607) ; Johnston-Crews Co. v. Smith, 33 Ga. App. 25 (125 S. E. 734). Moreover it was claimed by the plaintiff that the defendant waived the disqualification of the jiiror, and in McLendon v. Clark, 159 Ga. 264 (2) (125 S. E. 447), it was held: “Under the counter-showing the trial judge was authorized to hold that the movants were estopped from setting up the fact of relationship of the juror to the prevailing party as a ground for a new trial, because of the waiver that was made as to disqualification of jurors by counsel for caveators while the jury was being obtained.”

5. The jury settled the disputed questions of fact in favor of the plaintiff; the judge who tried the case approved their finding. No error of la,w was committed upon the trial, and this court is powerless to interfere.

Judgment affirmed.

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


author: Bloodwoktii, J.

text:
    17198.
    National Supply Company v. Bibb Brick Company.
    Appeal and Error, 4 O. J. p. 866, n. 51.
    Decided June 15, 1920.
   Bloodwoktii, J.

This court finds no error in the charge of which complaint is made in the amendment to the motion for a new trial. The jury has settled the disputed questions of fact; their finding has the approval of the judge who tried the case; and the judgment is

Affirmed.

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

Complaint; from Bibb superior court—Judge Malcolm D. Jones. January 29, 1926.

Martin, Martin & Snow, for plaintiff.

B. B. Feagin, for defendant.


text:
    17201.
    Mills v. The State.
    Criminal Law, 1,6 C. J. p. 269, n. 90, 91; p. 1043, n. 32; p. 1218, n. 53 ' Hew; 17 C. J. p. 212, n. 18; p. 271, n. 41; p. 274, n. 17.
    Decided June 15, 1926.
    Possessing intoxicating liquor; from city court of Bainbridge— Judge Spooner. January 25, 1926.

      Brahe & Brahe, P. B. Rich, for plaintiff in error.
   Bloodwobth, J.

1. Special grounds 1 and 2 of the motion for a new trial, based on alleged errbrs in admitting evidence, show no reason why a new trial should be granted.

2. For no reason alleged did the court err in admitting the evidence of which complaint is made in the 3d ground of the amendment to the motion for a new trial. The mere fact that the defendant pleaded guilty at a certain time will not, when at a subsequent time he is being tried on a different accusation for a violation of the same statute, prevent the introduction of evidence showing a violation of the same law prior to the date of the plea, unless it be also shown that this evidence related to a time prior to the date of the filing of the first accusation. This ground is incomplete in that it does not give the date when the first accusation was filed.. “He who alleges error must show error.”

3. Special grounds 4, 5, and 7 of the motion all relate to alleged errors in the charge, in which the jurors were instructed that they would be authorized to convict the accused if it had been shown that at any time within two years prior to the filing of the second accusation he violated the law as charged against him in the accusation. It is not shown when the first accusation was filed, or that it was within two years prior to the filing of the second one. The excerpts from the charge are correct presentations of the law, and, as far as the record sliows, none of the evidence related to any transaction prior to the filing of the first accusation; therefore the excerpts from the charge complained of are not shown to be erroneous.

4. Ground 6 is not argued in the brief of counsel for plaintiff in error, and will be treated as abandoned, as there is no general insistence on all the grounds of the motion.

5. There is evidence to support the verdict, which has the approval of the judge who tried the case, and this court will not interfere.

Judgment affirmed.

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


text:
    17202.
    Mills v. The State.
    Decided June 15, 1926.
    Selling intoxicating liquor; from city court of Bainbridge— Judge Spooner. January 25, 1926.
    P. D. Rich, Drake & Drake, for plaintiff in error.
   Bloodworth, J.

Tliis ease and tlie case of Mills v. State, ante, 471, grew out of the same transaction. The two cases were tried together, and the rulings in that ease control this one.

Judgment affirmed.

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


text:
    17275.
    HEYWARD v. RAMSEY.
    1. The amendment allowed did not set forth a new and distinct cause of action.
    2. In the original petition there was enough to amend by.
    3. It was not necessary to attach to the petition a copy of the contract referred to therein.
    Appeal and Error, 4 O. J. p. 864, n. 34.
    Pleading, 31 Oye. p. 362, n. 39; p. 415, n. 29; p. 556, n. 69.
    Decided June 15, 1926.
    Complaint; from Habersham superior court—Judge J. B. Jones. November 24, 1925.
    This is the second appearance of this case in this court. When first here it was held that the allegations in the original petition were not sufficient to support an action for an “account stated.” See Heyward, v. Ramsey, 31 Ga. App. 14 (121 S. E. 847), where the original petition of the plaintiff is shown. When the case was again tried in the superior court the plaintiff, by amendment, struck from the petition the allegation that the indebtedness for which suit was brought was for an “account stated and agreed to,” and submitted in lieu thereof the words “upon an open account.” This amendment was demurred to in writing, as follows: “1. That said amendment filed on the 26th day of November, 1924, undertakes to set forth a new and distinct cause of action from the original effort of an alleged cause as contained in the petition; that said petition and amendment do not set out a bill of particulars, and do not set out a cause of action on an open account. 2. That plaintiff seeks in said amendment to sue on an open account, but the pleadings of plaintiff, contained in the original petition and said amendment, show that no kind of an account was created between plaintiff and defendant; there is nothing in the alleged facts constituting an open account nor one stated—no items alleged and no time alleged when created, and how created and what constitutes the same.” The petition was further demurred to upon the ground that it “alleged that there was a contract between plaintiff and defendant, and plaintiff did not set out the terms of the contract nor attach copy of the same.” These demurrers were overruled and exceptions pendente lite were filed. Upon thé last trial of the ease the jury found in favor of the plaintiff. The defendant made a motion for a new trial on the general grounds. The motion was overruled, and the defendant excepted, alleging error in the overruling of the demurrers and in refusing to grant a new trial.

      Thad. L. Bynum, for plaintiff in error.

      J. 0. & H. E. Edwards, contra.
   Bloodworth, J.

(After stating the foregoing facts.) The court did not err in overruling the demurrers.

The amendment did not set forth a new and distinct cause of action from that alleged in the petition. The amendment does not contain any other or different wrong from that pleaded in the original petition, but-the additional matter is simply descriptive of the same wrong. City of Columbus v. Anglin, 120 Ga. 785 (5) (48 S. E. 318); Moore v. Hendrix, 144 Ga. 646 (3) (87 S. E. 915).

There was enough in the original petition to amend by. “There was a plaintiff, a defendant, jurisdiction of the court, and facts enough to indicate and identify some particular cause of action as the one intended to be declared upon so as to enable the court to determine whether the facts to be introduced by the amendment are a part and parcel of the same case.” Ellison v. Georgia Railroad Co., 87 Ga. 692 (6) (13 S. E. 809). The amendment did nothing more than to perfect an imperfect cause of action.

Though the petition alleges that the amount due the plaintiff was for services rendered “as per contract,” it was not necessary to attach a copy of the contract, for it “is not declared on, does not constitute the cause of action, and there is no prayer for relief based thereon. Civil Code, § 5541. The contract (if there be one in writing) is simply evidence of the indebtedness and could be used as such.” Ittner v. Farmers State Bank, 15 Ga. App. 235 (89 S. E. 909) ; Cooney v. Foote, 15 Ga. App. 457 (3) (83 S. E. 896); Chatham Abattoir &c. Co. v. Painter Engineering Co., 28 Ga. App. 383 (111 S. E. 82); Southern Ry. Co. v. Grant, 136 Ga. 303 (1), 304 (71 S. E. 422, Ann. Cas. 1912C, 472); Roberts v. Leak, 108 Ga. 806 (33 S. E. 995); Schmidt v. Wambacker, 62 Ga. 321.

’ There was some evidence to support the finding of the jury, and the verdict having been approved by the trial court the judgment is Affirmed.

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


author: Broyles, O. J.

text:
    17287.
    Meeks v. The State.
    Criminal Law, 17 C. J. p. 255, n. 54.
    Decided June 15, 1926.
    Burglary; from Bibb superior court—Judge Mathews. March 6, 1926.

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

      Charles H. Garrett, solicitor-general, contra.
   Broyles, O. J.

The verdict was amply authorized by the evidence, and the single ground of the amendment to the motion for a new trial shows no error.

Judgment affirmed.

Luke and Bloodworlh, JJ., concur.


author: Luke, J.

text:
    17288.
    TAYLOR v. THE STATE.
    A conviction of simple larceny was authorized by evidence that the accused fraudulently obtained from the prosecutrix $150 to be used by him for her in relieving her son from a sentence for misdemeanor, which the accused represented to her had been imposed, but which in fact had not been, as the accused knew; the facts supporting a finding that he appropriated the $150 to his use with intent to steal.
    Larceny, 36 O. J. p. 899, n. 34.-
    Decided June 28, 1926.
    Certiorari; from Pulton superior court—Judge E. D. Thomas. February 18, 1926.

      C. G. Battle, II. A. Allen, for plaintiff in error.

      Boy Dorsey, solicitor, John A. Boyhin, solicitor-general, J. W. LeCraw, contra.
   Luke, J.

Taylor was convicted of the offense of simple larceny. The evidence as to his guilt was in conflict; but the jury, as arbiters, were authorized to find that the defendant, a lawyer, represented to the prosecutrix that her son had been convicted of violating the prohibition statute, and had been sentenced to pay a fine of fifty dollars, and, in addition, to work upon the public works for a term of twelve months; and that on the afternoon of the day on which he was talking to her, or early next morning, her son would be sent out to the public works to begin his sentence, but that for the sum of $150 he would arrange to have her son relieved from the sentence imposed upon him; that, upon such representation, she borrowed $150, which was paid to him; that in truth her son, had received no such sentence as he told her had been imposed, and that the defendant knew at the time of making the statement that her son had been fined $50 and given a twelve-months sentence, with the proviso that the sentence be suspended upon the payment of the $50 fine; that the $50 fine was paid by the check of the defendant, but subsequently the check given in payment of the fine was not paid by the bank, at the instance .of the defendant; that the defendant collected the $150; that upon the failure of the bank to pay the $50 check the son of the prosecutrix was rearrested and his fine paid otherwise; that after the rearrest, and about the time the accusation upon which the defendant was tried was being prepared by the solicitor of the court, the defendant made restitution of the $150 paid him. Upon this state of facts the jury had a right to find that the defendant fraudulently obtained possession of $150, to be used by him for the prosecutrix in relieving her son from a sentence imposed, which sentence in fact had never been imposed, that the defendant knew this, and that the $150 was appropriated to the use of the defendant, with the intent to steal the same. Upon the answer to the petition for certiorari, the judge of the superior court having overruled and denied the same, .this court can not, upon the general grounds, say that there was no evidence to support the finding of the jury. The record shows no reversible error.

Judgment affirmed.

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


author: Beoyles, C. J.

text:
    17291.
    Seaboard Air-Line Ry. Co. v. Wilkes Lumber Co.
    Appeal and Error, 3 O. J. p. 982, n. 83; 4 C. J. p. 1068, n. 22; p. 1069, n. 23; p. 1075, n. 52.
    Decided June 15, 1926.
    Damages) from McIntosh superior court—Judge Sheppard. February 23, 1926.

      O. B. Gony&i’s, for plaintiff in error.

      B. W. Fortson, Tyson & Tyson, contra.
   Beoyles, C. J.

1. Counsel for the plaintiff in error argues in his brief that the court erred in overruling ground 2 of the special demurrer to the petition. However, an inspection of the record discloses that the judge sustained that ground of the demurrer, but allowed the plaintiff to amend its petition within thirty days, and that this ruling was not excepted to in the exceptions pendente lite of the plaintiff in error to the rulings upon its demurrers to the petition. The only such rulings therein excepted to were the overruling of the general demurrer and of ground 1 of the special demurrer; and these exceptions, not being argued or referred to in the brief of counsel for the plaintiff in error, are treated as abandoned.

2. This court can not consider grounds of a motion for a new trial, complaining of the refusal of the judge to comply with certain requests to charge, unless the grounds show affirmatively that the requests to charge were in writing. Little v. West, 145 Ga. 563 (2) (89 S. E. 682) ; Dumas v. Stafford, 22 Ga. App. 365 (4) (95 S. E. 1009). The statement in such grounds, that the desired charges “were duly requested within the time required by law,” does not show affirmatively that the requests to charge were in writing. Under this ruling, grounds 6 to 10 inclusive of the amendment to the motion for a new trial can not be considered.

3. The remaining special grounds of the motion for a new trial show no reversible error, and the verdict was authorized by the evidence.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


author: Bloodwoeth, J.

text:
    17292.
    Russ v. The State.
    Criminal Daw, 16 C. J. p. 942, n. 71; 17 C. J. p. 177, n. 88; p. 341, n. 84.
   Bloodwoeth, J.

1. Bach special ground of a motion for a new trial must be complete and understandable within itself, without reference to any other part of the record. This court is not required to look beyond the ground itself to learn the facts or to ascertain error. Franklin v. State, 28 Ga. App. 460 (1 a, b, c) (112 S. E. 170). In addition, the name of no witness is mentioned either in ground 5 or 7. This is necessary. Crawford v. State, 33 Ga. App. 612 (127 S. E. 415). Under these rulings grounds 4, 5, 6, and 7 of the amendment to the motion for a new trial present nothing for consideration by this court.

Decided June 15, 1926.

Taking shrimp, etc.; from Camden superior court—Judge High-smith. February 27, 1926.

S. C. Townsend, for plaintiff in error.

W. B. Gibbs, solicitor-general, contra.

2. Where the defendant at the time of his arrest stated that he lived in Eernandina, Elorida, and this is not denied, and a witness swore that the accused lived in Eernandina, Elorida, a new trial is not required because the court charged the jury that they “would be authorized to find that he (the defendant) was a resident of Elorida, if you find that he himself so stated at the time that he was arrested.”

3. The court did not err in charging the jury that “it appears to the court, from a consideration of the act and from an examination of the chart here exhibited, that the boundary would extend three miles into the ocean from the low-water mark, as indicated on the chart, from the east side of Cumberland Island.”

4. The judge instructed the jury that it was for them to determine whether the defendant did or did not violate the law “at the time alleged, or within two years before the indictment was returned into court.” This charge was alleged to be error “for the reason that the act under which the defendant was being prosecuted was not passed by the General Assembly until the session of 1924.” Even if inaccurate, this charge was harmless.' The indictment was returned at the November term, 1925, and charged that the offense was committed on September 11, 1925. The evidence shows only one violation of the law and that was on September 11, 1925, and no other time is mentioned. See Adams v. State, 22 Ga. App. 252 (2) (95 S. E. 877) ; Langston v. State, 23 Ga. App. 82 (97 S. E. 444).

5. The evidence supports the finding of the jury.

Judgment affirmed.

Broyles, G. J., and Lulce, J., coneur.


text:
    17293.
    Putman v. The State.
    Criminal Law, 16 C. J. p. 1050, n. 84; 17 C. J. p. 271, n. 41.
    Decided June 15, 1926.
   Bkoyles, C. J.

1. When the various excerpts from the charge of the court, complained of, are considered in the light of the entire charge and the facts of the case, no reversible error appears.

2. While the evidence connecting the accused with the offense charged was wholly circumstantial, this court, under all the particular facts of the case, can not hold, as a matter of law, that the jury were not authorized to find that the evidence was sufficient to exclude every reasonable hypothesis except that of the defendant’s guilt; and, the finding of the jury having been approved by the trial court, this court has no authority to interfere.

Judgment affirmed.

Lulce, J., concurs. Bloodxoorth, J., dissents.

Making intoxicating liquor; from Murray superior court—Judge Tarver. February 34, 1936.

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

C. G. Pittman, solicitor-general, contra.


text:
    17294.
    BOONE v. LEWIS.
    1. An action for damages for a breach of the implied warranty under subsection 2, section 4135 of the Civil Code of 1910, “that the article sold is merchantable, and reasonably suited to the use intended,” lies where there is a partial failure of consideration.-
    2. The measure of damages in this case is the difference between the price paid for the hogs and their actual value as reduced by their defective condition.

      (a) Expense properly and reasonably incurred by the plaintiff in going to Atlanta in order to lessen the loss caused by the disease was a proper item of damages.
    3. The remaining grounds of the demurrer were not meritorious, and the court properly overruled them.
    Sales, 35 Cyc. p. 397, n. 21; p. 441, n. 82; p. 470, n. 11; p. 475, n. 35.
    Decided June 15, 1926.
    Complaint; from city court of Valdosta—Judge Cranford. March 18, 1936.

      G. A. WMtalcer, Copeland & Dukes, for plaintiff in error.

      E. K. Wilcox, contra.
   Luke, J.

W. B. Lewis, trading as Jasper Grocery Company, brought an action for damages against S. S. Boone, trading as Valdosta Stock Yards, alleging: (1) Defendant is a resident of Lowndes county. (3) Shortly prior to January 34, 1933, petitioner purchased from said defendant a carload of hogs, which he intended, as the defendant was then advised, to ship to the State of North Carolina, and there resell them for slaughter. (3) On said date, to wit, January 34, 1934, the defendant caused 193 hogs to be delivered to petitioner by H. J. Hall & Company at Sparks, Georgia, and they were there loaded in car MP 51613, and were immediately shipped to Frank Bullock & Company at Bocky Mount, North Carolina, to whom he had contracted to sell them. (4) Petitioner paid defendant for said hogs the sum of $1017.33, that being the agreed price. (5) The sale to petitioner was without any express warranty, but said hogs were purchased upon the warranty implied by law that they were merchantable and reasonably suited to the use intended. (6) At the time of delivery said hogs, or some of them, were infected with cholera, a contagious and deadly disease, and were unfit for the use intended. However, the disease had not developed to the extent that it was apparent upon or could have been discovered by inspection, and the defect was latent. (7) When said hogs reached Atlanta, to wit, on January 25, 1923, 'and were unloaded at the Miller Union Stock Yards for feed, water, and rest, one of them was dead and several others were sick. They were thereupon inspected and found to be suffering from cholera, and S. J. Horne, Esquire, chief inspector of the Bureau of Animal Industry of the United States Department of Agriculture in charge of this State, notified the transportation company which then had the shipment in its possession that the hogs would not be allowed to move any further. (8) Upon receipt of notice of what had occurred, petitioner immediately went to Atlanta, and upon his arrival found that eleven head of the hogs had died, and that others were probably infected with the disease. In an effort to lessen the damage, as he was in duty bound to do, he sold the remainder to the White Provision Company for immediate slaughter. They were slaughtered on January 29, 1923, and the carcasses of four of them were found to be unfit for food, because of said disease, and were condemned. (9) Petitioner received for the hogs so sold and slaughtered $582.84 only, and the expense of his trip to Atlanta for the purpose aforesaid was $37.50. (10) By reason of the facts herein set forth, there was a breach of warranty on the part of the defendant, and because of said breach petitioner has been injured and damaged in the sum of $471.88, for which defendant is justly liable to him, with interest since January 24, 1923, at the rate of seven per cent, per annum. When the petition was- demurred to, both generally and specially, the plaintiff amended by adding at the end of the ninth paragraph thereof the following: “He avers that the said hogs were sold by him to the best possible advantage, the said sum of $582.84 being the highest and best offer he was able to get, although he made diligent effort to obtain a better price.” After this amendment was allowed, the first demurrer was renewed, with other grounds added. The demurrers were overruled, and defendant excepted.

It is contended by counsel for plaintiff in error that the ease of Snowden v. Waterman, 100 Ga. 590 (28 S. E. 121), lays down the rule that in an action for a breach of the implied warranty under subsection 2, section 4135 of the Code of 1910, plaintiff must allege and prove that the thing sold is totally worthless and useless. That section is as follows: “If there is no express covenant of warranty, the purchaser must exercise caution in detecting defects; the seller, however, in all cases (unless expressly or from the nature-of the transaction excepted) warrants—1. That he has a valid title and right to sell. 2. That the article sold is merchantable and reasonably suited ,to the use intended. 3. That he knows of no latent defects undisclosed.” In passing upon the demurrer in the Waterman case the court said: “The petition, before it was amended, in effect alleged that the article sold was not merchantable and was not reasonably suited to the use intended, and was ‘wholly and utterly worthless/ Therefore the court committed no error in overruling a general demurrer thereto.” Unquestionably this conclusion is correct. "We see no reason, however, why the ruling in that case should be extended beyond its facts and be deemed authority for holding that a partial failure of consideration can not be properly pleaded under subsection 2, supra. The same decision rules that “If the plaintiff seeks to recover for a breach of the implied warranty under the third clause, he must allege and prove that the seller knew of latent defects and failed to disclose them.”

If in the case at bar the disease was of such a nature that it was not known to the seller, there could be no recovery under the third clause. If a recovery could only be had under the second clause when there is a total failure of consideration, the plaintiff would, even though he had, as alleged, suffered material loss because of a partial failure of consideration, be without remedy under the second subsection of section 4135. Section 4136 reads: “A breach of warranty, express or implied, does not annul the sale if executed, but gives the purchaser a right to damages. It may be pleaded in abatement of the purchase money. If the sale be executory, it is a good reason for the purchaser to refuse to accept possession of the goods.” This court, in Bentley v. Rice, 27 Ga. App. 816 (3) (110 S. E. 26), held: “The-use of articles of jewelry for wearing apparel is not for purposes of utility alone, but is partly ornamental; and where such goods are sold under a contract of sale with an implied warranty that the goods are reasonably suited to the use intended, and they are purchased for the purpose of resale, which latter fact is known to the seller, the fact that the goods become tarnished and lose their original brilliant appearance after delivery to the purchaser might be such as to impair the intended use of the articles and thereby amount to a breach of the implied warranty.” If a partial failure of consideration may be pleaded in defense to a suit for the purchase price of an article where the article is not merchantable and reasonably suited to the use intended, it would appear that partial failure of consideration should be allowed where the entire purchase price is paid and the plaintiff exercises his right to proceed for damages under section 4135, supra. Our conclusion is that in an action for damages for a breach of the implied warranty “that the article sold is merchantable, and reasonably suited to the use intended,” it is proper to plead a partial, as well as a total, failure of consideration, and that the petition was good in this respect.

The next ground of the demurrer is that the petition fails to set out any legal measure of damages. The correct measure of damages in this ease is the difference between the price paid for the hogs and their actual value as reduced by their defective condition. Berry v. Shannon, 98 Ga. 459 (25 S. E. 503); Atkins v. Cobb, 56 Ga. 86; Badgett v. Broughton, 1 Ga. 591; Feagin v. Beasley, 23 Ga. 17. Fairly construed, the petition as amended alleged damages in accordance with this rule, and the court did not err in overruling the demurrer in this regard.

Expense properly and reasonably incurred by plaintiff in going to Atlanta in order to lessen the loss caused by the disease was a proper item of damages. Snowden v. Waterman, 105 Ga. 84 (4) (31 S. E. 110); Leitner v. Goodwin, 60 Ga. 149 (2); Feagin v. Beasley, supra.

The remaining grounds of the demurrer were not meritorious, and the court properly overruled them.

Judgment affirmed.

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


author: Bloodwortii, J.

text:
    17295.
    LITTLE v. ROME RAILWAY & LIGHT CO.
    By tlie exercise of ordinary care the deceased could have avoided the consequence to himself caused by the defendant’s negligence, and a nonsuit was properly ordered.
    Electricity, 20 O. J. p. 372, n. 30; p. 373, n. 37.
    Decided June 15, 1926.
    Action for damages; from city court of Floyd county—Judge Bale. March 2, 1926.

      Harris & Harris, for plaintiff.

      L. A. Bean, Lamar Gamp, for defendant.
   Bloodwortii, J.

Eva Joe Little, by next friend, sued the Rome Railway & Light Company for damages on account of the death of her father, alleged to have been caused by the negligence of the defendant. The negligence alleged was that a pole which was rotten and on which were strung wires charged with 2300 volts of electricity was allowed to remain in a public street. Paragraph 6 of the petition alleged, that “the pole of defendant at the spot marked ‘A’ had fallen during the night, carrying with it the heavily-charged wires that were attached to it, and fell across the road at the point marked As said Smiley Little was on his way home he ran into said heavily-charged wires and was instantly killed, and his body was found the next morning at the place marked with an ‘X.7 77 It was further alleged that the pole broke off even with the ground, that it was absolutely rotten, that “had said pole been of sound wood it would not- have broken off and would not have carried the heavily-charged wires to the ground, and the said Smiley Little would not have been killed,77 and that “it was gross negligence on the part of the defendant to allow said pole to remain with said heavily-charged wires attached thereto, but should have removed same and placed a good and sound pole in its place.77 On the trial the evidence showed that “the post falling down caused the wires to come nearer the ground. . . They looked to be a little lower than a man’s head.77 It was shown also that the face of the deceased “was burned right across his cheek like the wire had hit it.77 At the time of the accident it was raining and dark; so dark, as one witness testified, that “you could not see at all.77 Another witness testified: “I told Smiley (the deceased) those wires were alive. . . I told him that the wire was lower on the right than it was on the left going np the hill, and that he could go on the left-hand side without touching the wire, and the one. he went on was the lower side. . . I mean by the lower side the low wire side. . . I told him to go under that high side. . . I told him he might be able to go under that side without stooping, because he was a tall man.” Thus it appears that Smiley Little knew that the pole was down and carried with it a live wire; that he was warned of the danger, and yet in the rain and darkness he voluntarily and deliberately walked into this place of known and obvious danger, his face came in contact with the wire, and he was killed.

By the exercise of ordinary care the deceased could have avoided the consequence to himself caused by the defendant’s negligence, and a nonsuit was properly ordered. Civil Code (1910), § 4426; Briscoe v. Southern Ry. Co., 103 Ga. 244 (2) (28 S. E. 638); Moore v. Southern Ry. Co., 136 Ga. 876 (72 S. E. 403); Lowe v. Payne, 156 Ga. 314 (118 S. E. 924).

Judgment affirmed.

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


text:
    17296.
    Wyatt v. The State.
    Criminal Law, 16 C. J. p. 1180, n. 74.
    Larceny, 36 C. J. p. 826, n. 75 New,
    Decided June 15, 1926.
    Larceny; from Laurens superior court—Judge Camp. February 27, 1926.

      W. A. Bampier, for plaintiff in error.

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

1. An indictment for larceny describing the property as “one nineteen-twenty model Studebaker Automobile windshield, taken from garage of J. J. Jordan on Church Street, Dublin, Georgia,” is a sufficient description of the property alleged to have been stolen to withstand a special demurrer which attacks the indictment upon the ground that the property alleged to have been stolen was not sufficiently described. The indictment is not subject to the demurrer urged.

2. The evidence amply authorized the defendant’s conviction. The court, - approving the verdict of guilty, properly overruled the motion for a new trial.

Judgment affirmed.

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


author: Beoyees, C. J.

text:
    17297.
    Clements v. Haskins.
    Executions, 23 0. J. p. 549, n. 89; p. 550, n. 20.
    Decided June 15, 1926.
    Affidavit of illegality of execution; from Atkinson superior court —L. A. Hargreaves, judge pro hae vice. February 18, 1926.

      W. D. Buie, for plaintiff in error.

      M. D. Dickerson, Quvncey & Quincey, Hendricks & Hendricks, contra.
   Beoyees, C. J.

Where an affidavit of illegality is based upon the ground that the affiant was not served in the suit, and where the affidavit sets forth a return of service by the sheriff and a traverse of such return by the affiant, and it is not alleged in the traverse that the traverse was made at the next term of the court after.the affiant had notice of the sheriff’s return, the affidavit of illegality is subject to dismissal on demurrer. Knight v. Jones, 63 Ga. 481; Civil Code (1910), § 5566.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    17298.
    LESLIE v. CITY OF MACON.
    Erom the allegations of the petition it appears that the plaintiff failed to exercise ordinary care to avoid the consequences to herself caused by defendant’s negligence, and the court did not err in dismissing the petition on motion.
    Municipal Corporations, 28 Cyc. p. 1471, n. 84.
    Decided June 15, 1926.
    Action for damages; from city court of Macon—Judge Hall. March 19, 1926.

      B. G. Plunkett, for plaintiff. H. 8. Strozier, for defendant.
   Luke, J.

Mrs. S. W. Leslie brought her action for personal in-

juries against the City of Macon. The petition as amended was dismissed on motion, and plaintiff excepted. That portion of the amended petition necessary to be considered is as follows: (3) Petitioner shows’ that on or about April 2nd, 1924, she was a pedestrian traveling along what is known as Plum Street, in East Macon. (4) Petitioner shows that at, or near the intersection of said Plum Street and Jones Avenue there is a branch, over which there was constructed at one time a bridge. (5) Petitioner shows that several months ago said bridge, having become in such bad repair, was removed entirely by the City of Macon, its agents and employees, leaving only the old broken, uneven and slippery cement foundation, and that after the removal of the bridge pedestrians using said Plum Street had no way to cross said branch except by stepping upon and across the foundation of said bridge. (6) Petitioner shows that on said date she was walking along Plum Street, going in the direction of Jones Avenue,- and upon reaching said branch stepped upon the cement foundation of said old bridge for the purpose of crossing said branch, and that by reason of the broken, uneven and slippery condition of said cement foundation, the said foundation caved in and gave way under petitioner’s feet, and your petitioner was thrown violently upon the ground, thereby sustaining a badly sprained, bruised and lacerated left arm, as well as having her entire body bruised and hurt. (9) Petitioner shows that at the time she sustained said injuries she was in the exercise of all ordinary care and diligence, and that by the exercise of such care and diligence said injuries could not have been avoided. (10) Your petitioner shows that the City of Macon has been negligent as follows: (a) In not maintaining a bridge over and across said branch, in permitting after the removal of said bridge, the cement foundation to become broken, uneven and slippery. (6) In not keeping said street in a reasonably safe condition for travel, (c) In failing to remove said broken, uneven and slippery cement foundation.

The petition was further amended by adding” the following paragraphs, numbered here as in the amendment: 2. Petitioner shows further that said branch or gully, at the time she sustained the injuries herein set fort, contained muddy and dirty water, and by reason thereof she could not, in the exercise of ordinary care and diligence, see the broken, uneven and slippery condition of said branch, and she could not, in the exercise of ordinary care and diligence, have known that said foundation would cave in and give way under her feet; that plaintiff stepped carefully and slowly upon the said cement foundation, placing her feet firmly upon said foundation before stepping. 3. The location at which your petitioner was injured, as herein set forth, was and. is within the corporate limits of said City of Macon. 5. Petitioner shows that the said City of Macon knew about the broken, uneven, dangerous, defective, and slippery condition of said street at said location, or that said defects had existed for a sufficient length of time to charge the City of Macon with notice under the law.

The sole question here for solution is whether or not plaintiff failed to use ordinary care to avoid being injured by defendant’s negligence. Plaintiff knew that the ditch was there, that the cement foundation, of the old bridge was in the ditch and that she could not see the condition of the foundation because of the muddy water in the ditch, and yet, without any emergency, she stepped on the foundation, fell, and was injured. In principle this case is controlled by section 4425 of the Civil Code (1910). Sheats v. City of Rome, 92 Ga. 535 (17 S. E. 922); Cook v. City of Atlanta, 94 Ga. 613 (19 S. E. 987); McCart v. Jasper County, 18 Ga. App. 769 (90 S. E. 725). See also Kent v. So. Bell Tel. &c. Co., 120 Ga. 980 (48 S. E. 399), where the rule enunciated in the foregoing authorities is elucidated and sustained, though held inapplicable to its facts. In the words of the code section cited, “If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover.” It appears as a matter of law from the allegations of the petition that plaintiff in this case failed.to use the requisite care, and the court did not err in dismissing the petition on motion.

Judgment affirmed.

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


text:
    17299.
    Ridgeway v. The State.
    Certiorari, 11 C. J. p. 158, n. 85.
    Decided June 15, 1926.
    Petition for certiorari; from Fulton superior court—Judge E. D. Thomas. February 27, 1926.

      Chappell & Slappey, for plaintiff in error.

      Roy Dorsey, solicitor, John A. Boykin, solicitor-general, J. W. LeCraw, contra.
   Bloodwobth, J.

The judge of the superior court did uot err in refusing to sanction the certiorari.

Judgment affirmed.

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


text:
    17301.
    GODWIN v. THE STATE.
    The evidence authorized the verdict; and the newly discovered evidence did not require the grant of a new trial.
    Criminal Law, 17 C. J. p. 248, n. 3.
    Decided June 15, 1926.
    Possessing intoxicating liquor; from Floyd superior court-judge Maddox. March 20, 1926.

      Porter & Mebane, for plaintiff in error.

      James F. Kelly, solicitor-general, contra.
   Luke, J.

Will Godwin was convicted of violating the prohibition statute. As conceded by his counsel, the evidence authorized his conviction. The special ground of the motion for a new trial upon the ground of newly discovered evidence, in our opinion,, as ■ shown by the record, does not warrant a reversal of the judgment of the court overruling and denying the motion for a new trial.

Judgment affirmed.

Broyles/ C. J., and Bloodioorth, J., concur.


text:
    17302.
    FUQUA v. LIVINGSTON et al.

    Where there is some slight'evidence to support a verdict approved by the trial judge, his discretion in refusing to grant a new trial because of alleged insufficiency of evidence will not be interfered with by this court.
    Appeal -and Error, 4 C. J. p. 833, b. 57.
    Decided June 15, 1926.
    Exceptions to auditor’s report; from Pulaski superior court— Judge Highsmith presiding. February 13, 1926.

      Lawson & Ware, for plaintiff. H. E. Coates, for defendants.
   Bloodworth, J.

Exceptions of fact were filed to the report of an auditor. The judge passed an order that the case should be submitted to a jury on the exceptions of fact. On this trial the judge properly charged .the jury that the report of the auditor “is to be taken as prima facie correct, and the burden is upon the party filing the exceptions to establish his right to have his exceptions sustained.” Civil Code (1910), § 5141. The jury found against the exceptions of fact. A motion for a new trial on the general grounds was filed by the plaintiff, it was overruled, and he excepted. “The motion for a new trial contained only the usual general grounds. There was some slight evidence authorizing the verdict; and, the verdict having been approved by the trial judge, under the repeated and uniform rulings of this court and of the Supreme Court a reviewing court is powerless to interfere. When the verdict is apparently decidedly against the weight of the evidence, the trial judge has a wide discretion as to granting or refusing a new trial; but whenever-there is any evidence, however slight, to support a verdict which has been approved by the trial judge, this court is absolutely without authority to control the judgment of the trial court.” Toole v. Jones, 19 Ga. App. 24 (90 S. E. 732). See Smith v. Barr, 32 Ga. App. 53 (8) (122 S. E. 626); Johnson v. State, 33 Ga. App. 148 (125 S. E. 734).

Judgment affifrmed.

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


text:
    17306.
    SMITH v. BUGG, receiver.
    The evidence presented questions of fact for determination by a jury, and the court erred in directing a verdict and in overruling the motion for a new trial.
    Carriers, 10 C. J. p. 719, n. 2; p. 720, u. 13; p. 1066, n. 71; p. 1067, n. 74.
    Trial, 38 Cye. p. 1532, n. 23, 24.
    Decided June 15, 1926.
    Damages; from Fulton superior court—Judge Humphries. March 22, 1926.
    Application for certiorari was made to the Supreme Court.

      D. F. Pope, Harwell, Fairman & Barrett, for plaintiff.

      Colquitt & Conyers, for defendant.
   Luke, J.

Mrs. Mamie Johnson (now Mrs. Smith) brought suit for damages against B. L. Bugg, receiver of the Atlanta, Birmingham & Atlantic Railway Company, on account of the death of her husband, Epp Johnson, which was caused by the derailment of a coach on a train of that company in which he was riding. The court directed a verdict for the defendant. The plaintiff made a motion for a new trial, in which she alleged error because of' the exclusion of certain evidence and because of the direction of the verdict. She now excepts to the overruling of her motion for a new trial.

The plaintiff alleged that her husband was a section boss at Woodbury, Georgia, for the defendant company; that procuring hands to work on his section-gang was a part of his duty; that on the morning on which he was killed he was returning from Atlanta, where he had come to procure such hands; that he was acting in the course of his employment and was in the discharge of his duty at the time of his death, and that the derailment of the coach which resulted in his death was due to the negligence of the defendant company. The defense urged by the railway company was that “at the time of the accident and injury complained of the said E. Johnson was riding on a free pass which had been issued to him by the defendant, and which contained the following condition: ‘The person'accepting and using it thereby assumes all risk of accident to person or property. . . I accept the above condition. [Signed] E. Johnson/ ”

In the case of Brooks v. Bugg, 34 Ga. App. 761 (131 S. E. 365), it was held that when a pass (identical with the one under consideration) was being used by the holder “for his individual pleasure or on business of his own, the pass when being so used was ‘gratuitous and not in consideration of services/ and ‘the stipulations contained in it and on which it is accepted, including one exempting the company from liability in case of injury, are enforceable/” And in the ease of Lanier v. Bugg, 32 Ga. App. 294 (123 S. E. 145), it was held that where a person is riding on such a pass as the one now under consideration, if his travel is in no way connected with his employment, the provision in the pass as to exemption of the railway company from liability is enforceable, and the defendant company “is not liable for an injury to him because of mere negligence, though gross, the parties having, as they were free to do, provided otherwise by their contract. The company can not be held liable in such case unless the injury was inflicted wilfully and wantonly.” There is no allegation or contention in the instant case that the negligence of the defendant company was wilful and wanton, and the degree of negligence proved in the instant ease was no greater than that in the above-cited cases, in one of which a nonsuit was granted, and in the other a verdict directed in favor of the railway company, and both judgments were upheld by this court.

Since under the Lanier and Brooks cases, supra, and other authorities, the clause providing for exemption from liability was enforceable, and the company was not liable unless the deceased at the time of his death was traveling on business for the defendant company, and since the record discloses ample evidence of negligence of the defendant company, and undisputably enough to submit that particular issue to a jury, the only remaining question for adjudication is whether or not there was any evidence admitted or illegally rejected which showed that the deceased, at the time of his death, was traveling on business for the defendant company. Under the facts of this case this question becomes vital, and if there was any material and admissible evidence on the subject it should have been submitted to the jury. It is error to withhold from the jury consideration and solution of all doubtful questions of fact on material issues which could reasonably arise from the evidence. The jury are the arbiters on questions of fact, “the chemists of the law.” Howard v. Savannah Electric Co., 140 Ga. 482, 486 (79 S. E. 112); Davis v. Kirkland, 1 Ga. App. 5 (58 S. E. 209); Hardy v. A. & W. P. Railroad Co., 20 Ga. App. 303, 307 (93 S. E. 18).

In the case of Tharp v. Central of Ga. Ry. Co., 31 Ga. App. 598 (121 S. E. 592), this court said: “An employee of a railroad company, while being carried to and from his place of work as a part of the contract of service, is regarded as a servant of the company, and not as a passenger. His status as such is not altered by the fact that his right to travel under his contract of service is evidenced by a so-called free pass, containing a stipulation printed thereon and assented to by him, that it is given by the company as a gratuity only, and upon the condition that he releases the company from all liability for injuries which may be received by him as the result of the company’s negligence while using this pass. See, in this connection, Southern Ry. Co. v. West, 4 Ga. App. 672 (62 S. E. 141); Beale & Wyman, Railroad Rate Regulation (1st ed.), § 153. Since such an employee is not a person riding gratuitodsly and receiving transportation extended to him by the company as a favor and without consideration, the company can not; in a suit by the employee for injuries received while riding to his work (which in the case under consideration was between two points in this State), defend upon the ground that the plaintiff when injured was riding upon a free pass which entitled the employee to transportation only between two points within this State, and that the defendant was for this reason not liable to him for any injuries caused as the result of the failure of the defendant to exercise due care. This being a suit against the railroad company by a person injured while riding upon one of the defendant’s trains, and the evidence authorizing the inference that the plaintiff was at the time an employee under circumstances above indicated, and there being some evidence that the plaintiff’s injuries were received as the result of the failure of the defendant to exercise towards the plaintiff the degree of care legally due him under such circumstances, it was error to grant a nonsuit.” (Italics ours.)

In the instant case there was considerable testimony offered for the purpose of showing that the deceased was traveling on business for the company at the time of his death; which was properly rejected by the trial court. However, the court erred in withholding .from the jury the testimony of W. H. Waters, hereinafter set out. The deceaped met Waters in the terminal station in Atlanta while on this trip alleged to have been made for the purpose of procuring section-hands and only about an hour before his death. Waters testified: “He (deceased) asked me what I was doing, and I told him I was working for Mr. G-armany. He says ‘How about coming out and working for me ?’ I told him I didn’t reckon I could go, I had about as good a job as I needed, as nice people as anybody wanted. . . He said if I would go he would carry me right on out with him, and get me a place to stay.” This evidence was improperly rejected 'as hearsay. It was direct and positive evidence that the deceased, on this particular trip, did actually try to hire the witness to work on his section, and it had considerable probative value to show that the deceased was on business for the company at this time. The fact that the deceased ran up on Waters casually, and that Waters was an old section-hand and acquaintance of the deceased, in no way renders the evidence insufficient, as stated by the trial judge. On the contrary, it was not unreasonable for the deceased to have come to a thickly populated place like Atlanta in an effort to find hands, without having any particular one in mind, and the fact that Waters had formerly been engaged in doing this kind of work makes it all the more probable that the deceased should try to hire him. However, be that as it may, the fact remains .that deceased did try to hire Waters. With this testimony erroneously repelled, the .direction of a verdict was error.

The court erred also in excluding the following testimony of Frank Greer: “I know that Epp Johnson, my section foreman, made a trip to Atlanta, Ga., on or about March 11, 1922, over the A., B. & A. Bailroad. For a little while prior to March 12, 1922, labor conditions were bad on this railroad, and it was difficult to keep hands to work on the section at that time. It was kind of hard to keep hands. As to what reason I know caused it to be difficult to keep hands to work on the section, labor was scarce around here. The strike was on at that time, and Mr. Johnson came here when the strike was on. He told me he was going up there after hands.” This evidence tended to show the reason, the motive, the occasion, the necessity for Johnson, the deceased section foreman, coming to Atlanta to get hands for his section, and coming on a day when he was not at work on the tracks of the defendant company. It also showed an emergency on account of the strike, and Johnson’s loyalty to and efforts in behalf of his employer during such an emergency. It has probative value when taken alone, but when linked with Waters’ testimony it is all the more relevant' and material, because the testimony of the one shows the necessity for making the trip to get hands, while the testimony of the other shows that he did actually endeavor to get the hands while on the trip. The evidence quoted above may or may not have been sufficient to convince the jury that the deceased at the time of his death was traveling on business for the defendant company, but under the strict rule that “a verdict should not be directed unless there is no issue of fact, or unless the proved facts, viewed from every possible legal point of view can sustain no other finding than that directed,” it should have been submitted to the jury for their consideration.

This evidence that the deceased was traveling on business for the defendant company at the time of his death, differentiates the instant case from the Lanier and Broolcs cases, supra, which otherwise would be controlling.

Since the evidence presented questions of fact for determination by a jury, the court erred in directing a verdict and in overruling the motion for a new trial.

Judgment reversed.

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


text:
    17307.
    HORTON v. THE STATE.
    The test which the law of this State prescribes as to the competency of a child of tender years to he a witness is knowledge by the child of the nature of an oath, and when an examination by the court shows that the child has no such knowledge it is error to permit the child to testify over proper objection. .
    Witnesses, 40 Cyc. p. 2204, n. 79, 81.
    Decided June 15, 1926.
    Wife-beating; from Johnson superior court—Judge Camp. March 29, 1926.

      G. S. Glaxton, for plaintiff in error.

      Fred. Kea, solicitor-general, contra.
   Bloodworth, J.

The evidence of a child was objected to on the ground that she did not understand the meaning and nature of an oath. As far as it relates to this question, the evidence of the witness was as follows: “I don’t know how old I am. Don’t know the day of the week. Don’t know the number of days in a week. Don’t know the number of days in a month. Don’t know what year it is. To-day is Friday. Lots of people have talked to me about this case and have told me to swear what I have told. I don’t know, the meaning of an oath. I don’t know what it means to be sworn. Don’t know that I would be punished for telling a lie. If I tell the truth I will go to heaven. If I tell a lie I will go to hell. The solicitor told me to say that.” The law of this State is that “children who do not understand the nature of an oath are incompetent” as witnesses. Civil Code (1910), § 5862; Penal Code- (1910), § 1038. In Warthen v. State, 11 Ga. App. 152 (74 S. E. 894), Chief Judge Hill said: “The test, therefore, which the law prescribes as to the competency of a child of tender years to be a witness is knowledge by the child of the nature of an oath; and if the preliminary examination of the child offered as a witness shows that she has no knowledge whatever of the nature of an oath, the code declares that she is incompetent as a witness. This is one of the safeguards which the law provides in the trial of criminal cases. It is not a technicality. But even if it is, it is a positive declaration of the statute and can- not be disobeyed. No conviction can be legally had except upon the testimony of a competent witness, and the law declares who are competent witnesses, and the orderly administration of justice demands that there shall be no relaxation of the rules of law on this subject. In this case the law declared that the child was incompetent as a witness to testify against the accused, unless she was shown by the preliminary examination to know the nature of an oath. Her examination on this subject shows, beyond question, that she had no knowledge whatever on the subject. On the preliminary examination she testified that she knew the difference between the truth and a lie, and that it was wrong to tell a lie, but this is not the test which the law makes as to the competency of witnesses. The test on this ground is knowledge of the nature of an oath, and on this controlling question she evinced no knowledge whatever.” The examination of the witness in the instant case shows that she was incompetent; that she had no knowledge of the nature of an oath, and, under the provisions of the statute and following the cases from which we have just quoted, we must hold that the court erred in allowing her to testify. See Johnson v. State, 76 Ga. 76; Miller v. State, 109 Ga. 512 (35 S. E. 152). In the last-cited case Mr. Justice Cobb said: “While questions of this character are to be left largely to the discretion of the trial judge, we feel constrained, in the present case, to hold that the judge should not have held the witness competent. In the light of the rulings heretofore made by this court, we do not think it appeared that the witness sufficiently understood the nature and obligation of an oath to testify in the case. The ease of Johnson v. State, 76 Ga. 76, seems to be almost controlling upon the point. What is said b'y Chief Justice Jackson in that case in reference to the child becoming a competent witness thereafter, when it had increased in age and been under proper moral training, will apply here. The record in the present case shows that the child was eight years of age when the trial was had, and it is probable that on another trial she may appear to have sufficient intelligence and to have been the subject of such training as to understand the responsibilities attaching to a witness in a case where human life is involved.”

Eliminating from the record what was sworn to by the child witness, there is no evidence to support the verdict, and the judgment is Reversed.

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


author: Bboxles, C. J.

text:
    17308.
    Mercer v. The State.
    Criminal Law, 16 C. J. p. 1181, n. 78.
    Decided June 15, 1926.
    Possessing intoxicating liquor; from city court of Metter—Judge Lanier. March 20, 1926.

      G. W. Turner, for plaintiff in error.

      L. G. Anderson, solicitor, contra. ■
   Bboxles, C. J.

The motion for a new trial contained the usual general grounds only. There was some evidence authorizing the verdict, and the refusal to grant a new trial was not error.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    17309.
    Parrish v. The State.
    Criminal Law, 16 C. J. p. 1180, n. 74.
    Decided June 15, 1926.
    Violating liquor law; from city court of Metter—Judge Lanier. March 20, 1926.

      O. W. Turner, for plaintiff in error.

      L. G. Anderson, solicitor, contra.
   Luke, J.

The defendant was convicted, upon ample evidence, of knowingly permitting an apparatus for manufacturing liquor to he located on his premises. The court did not err in admitting the evidence complained of in the amendment to the motion for a new trial, nor in overruling the motion.

Judgment affirmed.

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


text:
    17310.
    Parrish v. The State.
   Luke, J.

The defendant’s conviction of possessing intoxicating liquor was amply authorized by the evidence. No error of law appears- to have been committed on the trial, and defendant’s motion for a new trial, which was based on the general grounds only, was properly overruled.

Decided June 15, 1926.

Possessing intoxicating liquor; from city court of Metter— Judge Lanier. March. 20, 1926.

G. W. Turner, for plaintiff in error.

L. G. Anderson, solicitor, contra.

Judgment affirmed.

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


author: Beoyi.es, C. J.

text:
    17312.
    McBride v. The State.
    Criminal Law, 16 C. J. p. 1180, n. 74; 17 C. J. p. 212, n. 18.
    Decided June 15, 1926.
    Manslaughter; from Screven superior court—Judge Strange. February 23, 1926.

      H. A. Boykin, for plaintiff in error.

      John G. Hollingsworth, solicitor-general, contra.
   Beoyi.es, C. J.

1. The grounds of the amendment to the motion for a new trial, not having been argued or referred to in the brief of counsel for the plaintiff in error, are treated as abandoned.

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

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


author: Bboyi.es, C. J.

text:
    17314.
    Seaboard Air-Line Railway Co. v. Feingold et al.

    Appeal and Error, 4 C. J. p. 864, n. 33.
    Trial, 38 Cyc. p. 1711, n. 19; p. 1779, n. 75, 76.
    Decided June 15, 1926.
    Rehearing denied July 14, 1926.
    Damages; from city court of Albany—Judge Clayton Jones. March 13, 1926.
   Bboyi.es, C. J.

1. The charge of the court in this case was fair and sufficiently full, and the refusal to charge as requested was not error.

2. The excerpt from the charge complained of, when considered in connection with the entire charge, was not error.

3. This court can not hold, as a matter of law, that there was no evidence authorizing the verdict; and, the finding of the jury having been approved by the trial judge, this court is without authority to interfere.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

James Tift Mann, B. S. Roddenbery Jr., for plaintiff in error.

Milner & FarJcas, contra.