text:
    19331.
    McBURNETT v. THE STATE.

      Decided January 15, 1929.

      Porter & Mebane, for plaintiff in error.

      Alec Harris, solicitor, contra.
   Luke, J.

Melvin McBurnett was convicted of possessing intoxicating liquor. His motion for a new trial is based .upon the general grounds and two special grounds, alleging error in the charge of the court.

Marcus Horton testified that at about four o’clock on the afternoon of August 12, 1928, he and C. I. Harris, another deputy sheriff, under the authority of a search warrant, searched the defendant’s residence, and found three pints of whisky in a dresser drawer in a room of the house; that this was the only whisky found about the premises; and that he did not know Mrs. Willie Mae White, but that several people, including the defendant and his wife, were in the room when the whisky was found. O. I. Harris testified substantially as did Horton. Paul Warren, sworn for the defendant, testified that on the Saturday night before the whisky was found in the defendant’s house, Henry Crider had several bottles of whisky in a sack; that at about midnight they stopped at the defendant’s house, and Crider carried the sack containing the whisky into one of the rooms of the house; and that Crider took several bottles of whisky out of the sack and hid them “around under the house and on the premises.” Mrs. Willie Mae White, sworn for the defendant, testified that she was a widow; that she had been boarding with the defendant and his wife for about two weeks before the whisky was found; that the whisky was found in her room, which was occupied by her alone; that between twelve and three o’clock of the night before the officers came, Crider entered her room by a door opening on the front-porch, and put a sack of whisky in her room at a place between that door and another door, opening from her room into that occupied by the defendant and his wife; that at about eighty-thirty or nine o’clock Sunday morning, Crider came to the defendant’s house, and remained there for some time; that while there Crider took three bottles of the whisky out of the sack and put them in her dresser drawer and put the sack in the closet; that the defendant and his wife were in their room at the time; that she did not know why Crider put the whisky in her room; that they were “sorter sweethearts;” that the defendant did not see Crider put the whisky in the room, and she did not know whether the defendant knew it was there or not; that at about eight-thirty or nine o’clock in the morning Crider put the whisky in her dresser drawer and the sack in the closet, she told the defendant what Crider had done, and the defendant told Crider to take the whisky away from there. The defendant stated that he knew nothing about the whisky until Mrs. White told him Crider had left it there, and that he immediately told Crider that if he had brought any whisky to his house to be sure and take it away; that he never saw any whisky at all, and that so far as he knew up to the time the officers found the three pints of whisky Sunday afternoon, if Crider brought any whisky to his house he carried it away; and that Mrs. White was a boarder at his house occupying the room adjacent to his.

Counsel for the plaintiff in error contend that the evidence makes no case, and cite the following cases to sustain their contention: Voughn v. State, 39 Ga. App. 388 (115 S. E. 670); Jackson v. State, 36 Ga. App. 311 (136 S. E. 386); Wingfield v. State, 37 Ga. App. 504 (140 S. E. 763); Mullins v. State, 34 Ga. App. 357 (100 S. E. 755); and Toney v. State, 30 Ga. App. 61 (116 S. E. 550). In the foregoing cases the evidence did not show that the intoxicant was in the house or on the premises with the knowledge or consent of the defendant. In the case at bar it appears from both the evidence and the statement of the defendant that the defendant was told that the whisky was in a room adjoining his own, and that notwithstanding that fact it was found by officers about seven hours later. It is true that Mrs. White testified and the defendant stated that the defendant did tell Henry Crider to take the whisky away, but that was all the defendant did, though told that whisky was in the room opening into and next to his room. ' See, in this connection, Wyatt v. State, 27 Ga. App. 45 (3) (107 S. E. 147); Norman v. State, 26 Ga. App. 62 (105 S. E. 450). We can not say that the verdict of guilty was not supported by the evidence, and we hold that the general grounds of the motion for a new trial were properly overruled.

In the motion for a new trial it is contended that the following charge is erroneous, because not applicable to the facts of the case: “I charge you that in misdemeanor cases (and this is a misdemeanor case) all are charged as principals and are considered as principals.” An examination of the record shows that the charge was not erroneous for the reason assigned.

The motion for a new trial complains of a charge which was substantially as follows: If whisky was put in the house or on the premises of the defendant without his consent, nothing else appearing, he would not be guilty; but if he knowingly permitted it to remain there “without destroying it, calling the officers of the law, or delivering it to them, . . that would be his possession of such liquors.” The main objection urged to the foregoing charge is that it is inapplicable to the evidence, for the reason that the room where the whisky was found was occupied solely by a boarder, and was in effect her separate and distinct domicile, over which the defendant had. no control. We do not accede to this contention, and we hold that under all the facts of the case this charge was not ground for a new trial.

Judgment affirmed.

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


source: Caselaw Access Project

author: Bloodworth, J.

license: Public Domain

text:
    19332.
    CAIN v. THE STATE.
    Decided January 15, 1929.

      John I. Kelley, O. A. Nix, for plaintiff in error.

      Pemberton Cooley, solicitor-general, I. L. Oakes, G. P. Kelley, contra.
   Bloodworth, J.

(After stating the foregoing facts.) Three arguments were announced to be made by the State. The order of arguments was as follows: One for the State, one for the defendant, one for the State, one for the defendant, one for the State. The State had the opening and conclusion, the defendant having introduced evidence. The motion for a new trial complains that the court erred in permitting counsel for the State “to make an argument to the jury between the two arguments of counsel for the defendant.” “Where a number of counsel are engaged, the order in which they may argue is in the discretion of the court, unless such order is expressly regulated by rule of court or by statute.” 16 C. J., § 2223, p. 888, and cases cited in footnote. While the statute of Georgia regulates the opening and conclusion of arguments, we know of no statute of this State or rule of the trial court which prohibits the order of argument pursued in this case. On the contrary, the rule of that court seems to require this order of argument, as evidenced by the following ruling embodied in this ground of the motion: “It has been the custom since I have been on the bench, where there has been as many as three arguments for the State and only two for the defendant's counsel, the court has universally held, which I hold in this case, that the State has to open the case with an argument and then counsel can alternate on each side, and that gives the State the opening and conclusion, but with no two arguments together.” There is no merit in this ground of .the motion.

The 5th- special ground complains that the court erred in failing to instruct the jury on the law of involuntary manslaughter. While there was ah abundance of evidence to authorize the verdict of voluntary manslaughter rendered, the verdict was not absolutely demanded by the evidence, and there was some evidence which the jury, under a proper charge, might have construed as proof of involuntary manslaughter. In involuntary manslaughter there is no intention to kill. Penal Code, § 67. There was some evidence to the effect that the deceased came to his death because his head hit on some snags while he was scuffling with Elbert Cain; that Elbert Cain did not hit him with the gun; and that Elbert Cain got the gun from him and still made no effort to hurt him. Had the jury believed this evidence they might have concluded that, even though the homicide was not justifiable and was illegal, there was no intention on. the part of Elbert Cain to kill the deceased. Since it was the contention of the State that the defendant on trial was a conspirator of Elbert Cain, aiding and abetting him, Elbert Cain’s act, under this theory, was, in legal contemplation, the act of the defendant, and any favorable construction of the evidence that might inure to the benefit of Elbert Cain would likewise inure- to the benefit of the defendant. Furthermore, there was evidence that the defendant himself had the gun and a full opportunity to shoot the deceased and did not do so. The defendant contended that Elbert Cain did not hit the deceased on the head with the gun. There was ample evidence that he did hit the deceased several times on the head with the gun, and that these blows resulted in his death. This, in connection with the other facts and circumstances in the case, authorized the verdict of voluntary manslaughter. However, the jury might have concluded that the refusal of the defendant and of his alleged conspirator to shoot the deceased when they had an opportunity to do so showed that there was no intention to kill; and accordingly, under a proper charge, would have rendered a verdict of involuntary manslaughter. In Ilanvey v. State, 68 Ga. 613, it was held: “If a deadly weapon be used in a homicide in the usual and natural manner in which such weapon would-produce that result, the presumption of an intention to kill would arise. Aliter if the weapon were used in a manner not naturally calculated tq produce such result.” And in the opinion (p. 616) the court said: “If a. deadly weapon is used to accomplish the killing, which is likely to produce death when used in the manner the proof shows it was used, the law presumes that the person using it intended to kill. This 'presumption may be removed by proof. Express malice is the deliberate intention, etc. There can be no question as to the meaning of the sentence excepted to, which was, that if a deadly weapon were used in the killing, and the proof showed that it was used in the manner in which such weapons were used to kill, then the law presumed that the person so using it intended to kill. That is to say, if a man used a pistol in the killing, and fired it, and thus killed the deceased, the presumption of the law was that he intended to kill, because he used it in the manner such weapons were used to kill. But if he should strike the deceased with the barrel and kill him, ■that not being the manner in which such deadly weapon was used to kill, then the presumption would not arise.” (Italics onrs.)

The intent was a question for determination of the jury from the facts and circumstances deduced on-the trial. “If a deadly weapon be used in the commission of a homicide in the usual and natural manner in which such weapon would produce that result, such as intentionally shooting another with a gun, the presumption of an intention to kill would arise. But a weapon may be used in a manner not naturally calculated to produce death; and in such a case the question of intent to hill is one of fact.” (Italics ours.) Delk v. State, 135 Ga. 313 (3) (69 S. E. 541, Ann. Cas. 1912A, 105). In the opinion Justice Lumpkin, speaking for the court, said (p. 315) : “But a deadly weapon may be used in such a manner as not necessarily to raise such a presumption, but to leave the intent as a question of fact for the jury. Thus, to strike one with the barrel of a pistol instead of shooting him with the weapon, or to strike with the handle of a dirk instead of with the blade, would not be the ordinary way of using such a weapon to kill, and the intention to kill would be rather a question of fact than of presumption.” In Jackson v. State, 76 Ga. 473 (3), the Supreme Court said: “There can be no involuntary manslaughter where the intention is to kill. If there is any evidence to raise a doubt, even though slight, as to the intention to kill, the court should give in charge the law of involuntary manslaughter, but if there is nothing to raise such a doubt, the failure to charge on that subject will not require a new trial.” This court held in Warnack v. State, 3 Ga. App. 595 (2) (60 S. E. 290), that “When, from the evidence or the statement, some doubt, although slight, might arise as the intention to kill, the court should give in charge the law of involuntary manslaughter.” In Griffin v. State, 18 Ga. App. 462 (5 a) (89 S. E. 537), this court held: “If there is anything deducible from the evidence, or from the defendant’s statement at the trial, that would tend to show manslaughter, voluntary or involuntary, it is the duty of the court to instruct the jury fully on the law of manslaughter.” A defendant’s statement alone, however, though it might authorize, would not require such a charge, in the absence of a request. Parks v. State, 105 Ga. 248.

In this case there was some evidence from which the jury might have determined that the defendant and his alleged conspirators attacked the deceased unlawfully but without any intention to kill; or that their attack was justifiable and lawful and without any intention to kill, but was in an unlawful manner which probably might produce death and did produce death. In the light of the evidence and the rulings of the Supreme Court and of this court, the failure to charge the law of involuntary manslaughter will require another trial of the case.

The 6th special ground of the motion complains of the court’s failure to charge the law of circumstantial evidence. Since, under the contention of the State, the defendant’s guilt depended upon a conspiracy with J. C. Cain and with Elbert Cain who made the felonious assault upon the deceased, and since the evidence of this conspiracy was wholly circumstantial, we are of the opinion that the court should have charged the law relative to circumstantial evidence.

The 7th special ground of the motion complains of the admission in evidence of certain statements made by the deceased to his wife a few minutes after the fatal encounter. The trial court evidently considered that these statements were so nearly connected with the difficulty in point of time as to be free from all suspicion of device or afterthought, and consequently to be admissible as a part of the res geste. Penal Code (1910), § 1024. However, whether or not these statements were admissible as a part of the res gestae, the admission of them is no cause for a new trial, because the dying declaration of the deceased, which was properly admitted, embodied the same evidence. Jefferson v. State, 137 Ga. 382 (4) (73 S. E. 499); Dill v. State, 106 Ga. 683 (2) (32 S. E. 660).

The 8th special ground of the motion complains of the court’s failure to instruct the jury with reference to the evidence which was admitted upon the theory that it formed a part of the res geste. Since the same evidence was properly admitted in the dying declaration, as stated in the preceding paragraph, and since the court charged fully on dying declarations, and in view of the court’s charge generally on the degree of evidence necessary to convict, and since there was no request to charge with reference to this particular evidence, the failure so to charge was not error.

The excerpt from the charge in reference to dying declarations, set out in the 9th special ground of the motion, shows no error.

Because of the court’s failure to charge on involuntary manslaughter and on the law of circumstantial evidence, the judgment overruling the motion for a new trial must be

Reversed.

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


author: Broyles, C. J.

text:
    19339.
    Daniel v. The State.
    Decided January 15, 1929.

      C. G. Battle, for plaintiff in error.

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

Under all the facts of the case as disclosed by the record, this court is unable to hold that the judge of the superior court abused his discretion in overruling the certiorari.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


author: Luke, J.

text:
    19340.
    CARROLL v. THE STATE.
    Decided January 15, 1929.

      8. E. Byer, for plaintiff in error.

      W. Y. Atkinson, solicitor-general, contra.
   Luke, J.

The indictment charged Leonard Carroll with assault with intent to murder by shooting Glen Copeland with a pistol. The defendant was found guilty of unlawfully shooting at another. His motion for a new trial, based only upon general grounds, was overruled, and he excepted.

The defendant was an employee at the Grantville Hosiery Mill, and Glen Copeland represented a life-insurance company which was carrying group insurance on the employees of the mill. Copeland called at the defendant’s residence to see about insurance. The defendant was at the mill at the time, but his wife and two other ladies were at his house during Copeland’s visit there. One of these ladies testified that she saw Copeland and Mrs. Carroll in the house through an open .door, but did not hear what they said. Copeland testified that he had known Mrs. Carroll for several years; that they joked with each other about rather intimate matters; and that he transacted his business and left, without insulting the lady in any way. There was evidence that Mrs. Carroll left Copeland and came to the other women on the premises, crying and nervous. It further appears from the evidence that when Copeland left Carroll’s residence and appeared at the mill some twenty or thirty minutes later, the defendant approached him and asked him why he had treated Mrs. Carroll as he had, and insisted that Copeland come outside the mill and tell him all about it. Copeland affirms that he denied culpability, and finally did go outside. The defendant had a pistol and shot at Copeland in spite of the fact that the defendant’s brother tried to prevent him from doing so. Copeland saw the danger and turned sidewise. The first shot missed, but the second shot, fired as Copeland was retreating, shattered the bone in his leg. It does not appear that Copeland had any weapon, or that he made any attempt to touch his assailant. The defendant stated he had only been married eight weeks; that his wife came to the mill crying, and told him that Copeland had insulted her by asking her if she wouldn’t go to bed with him; that he asked Copeland what he meant by talking to Mrs. Carroll as he had; that Copeland replied sarcastically that he had not done it; that Mrs. Carroll came up crying and said, “You did, you need not deny it;” that Copeland then said, “I am sorry, I didn’t mean any harm;” and that this made the defendant so angry that he could not control himself and shot, thinking he had a right to protect his wife and her honor.

Unquestionably the verdict is supported by the evidence and the defendant’s statement. The sentence of the court that the defendant pay a fine of $300 or work on the chaingang for twelve months is in line with the jury’s recommendation that the defendant be punished as for a misdemeanor. For the well-known rules of law covering cases like the one under consideration, see Fallon v. State, 5 Ga. App. 659 (63 S. E. 806). See also Studstill v. State, 105 Ga. 832 (31 S. E. 542).

Judgment affirmed.

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


text:
    19341.
    GUEST v. THE STATE.
    Decided January 15, 1929.

      A. II. Gray, for plaintiff in error.

      B. T. Castellow, solicitor-general, Bond Almmd, contra.
   Bloodworth, J.

The defendant was convicted of hog stealing. There was no direct evidence that he or any one else stole the hog in question. The evidence as to his stealing it was entirely circumstantial, and, under the facts of this case, the court erred, as alleged in the 6th special ground of the motion for a new trial, in failing to instruct the jury as to the amount and character of proof necessary to warrant a conviction on circumstantial evidence. Hamilton v. State, 96 Ga. 301 (22 S. E. 528); Harris v. State, 18 Ga. App. 710 (90 S. E. 370), and cases cited in the opinion; Walker v. State, 31 Ga. App. 519 (120 S. E. 130). This error requires the grant of a new trial.

In view of the foregoing ruling and the nature of the other alleged errors, it will not be necéssary to pass upon them.

Judgment reversed.

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


text:
    19342.
    KIRKLAND v. THE STATE.
    Decided January 15, 1929.

      R. L. Cox, H. G. Rawls, for plaintiff in error;

      B. T. Castellow, solicitor-general, J. T. Goree, Bond Almand, contra.
   Broyles, C. J.

L. G. Kirkland was convicted of the offense of cheating and swindling. A material averment in the indictment was that the defendant, “for the purpose of obtaining a credit from J. L. Dickenson and with intent to deceive and defraud said J. L, Dickenson, did falsely, fraudulently, and knowingly state and represent orally that he, said L. G. Kirkland, then and there owned fifty cords of wood then cut and ready to be marketed, which said statement and representation was then and there false and then and there by the said L. G. Kirkland known to be false.” Upon the trial no evidence showed that the above-stated representation of the accused was untrue. His conviction, therefore, was unauthorized, and the court erred in refusing to grant a new trial.

Judgment reversed.

Lulce and Bloodworth, JJ., concur.


text:
    19343.
    KNIGHT v. THE STATE.
    Decided January 15, 1929.

      M. B. Eubanks, for plaintiff in error.

      Alec Henris, solicitor, contra.
   Luke, J.

W. A. Knight was convicted of operating an automobile on Broad Street and Second Avenue in the City of Rome, Ga., while in an intoxicated condition. The motion for a new trial is based solely upon the usual general grounds.

It appears from the record that the defendant, accompanied by two other men, was seen driving an automobile on Broad street and “out Second Avenue” in the City of Rome; that the conduct of the party was such as to attract the attention of certain policemen, who followed the party; and that about twenty or thirty minutes later, when the defendant was seen “very drunk” and driving the automobile recklessly on another street in the City of Rome, he was arrested. In his statement he admitted that he had taken a '“fairly good drink . . and did not skimp it” in North Rome; that “this stuff had kinder flew over him,” and that he “wasn’t used to drinking much.”

The evidence and the statement of the defendant support the verdict, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    19348.
    Harvey v. The State.
    Decided January 15, 1929.

      J. J. Bull & Son, for plaintiff in error.

      John B. Guerry, solicitor, contra.
   Bloodworth, J.

There is no merit in the special grounds of the motion for a new trial, and the evidence, though conflicting, authorized the conviction.

Judgment affirmed.

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


text:
    19103.
    PATTERSON v. BURTZ, for use, etc.
    Decided January 16, 1929.

      John T. Dorsey, A. N. Bdtvards, for plaintiff in error.

      A. H. Burtz, contra.
   Luke, J.

A. H. Burtz, for the use of Ellijay Mercantile Company, brought an action on an account against Morgan Patterson. The case was referred to an auditor. The auditor found for the plaintiff, and Patterson excepted to the auditor’s report. 'Upon motion of counsel, the judge of the superior court passed an order “dismissing said exceptions.” A judgment was then rendered against Patterson for $472.59, principal, $65.23 interest to judgment, and future interest on the principal at the rate of seven per cent, per annum. Patterson excepted to the order dismissing his exceptions and to the final judgment.

The auditor’s findings were as follows: “1. Defendant demurred to plaintiff’s petition upon the ground that plaintiff, A. H. Burtz, had no interest in said suit for the reason that he had transferred same to Ellijay Mercantile Company. Said demurrer was overruled. 2. After hearing the evidence and argument of counsel, I find that the main questions involved are questions of fact. I further find that the plaintiff has proved his claim to the satisfaction of the auditor, with the exception of some credits to which defendant is entitled. 3. I therefore find in favor of the plaintiff on the issues of fact in the case, and against the defendant, the sum of $472.59, principal, and the sum of $96.46 interest, with cost of suit. 4. I classify my findings 1 and 2 as above set forth as findings of law, and those set forth in paragraph 3 as my findings upon questions of fact.”

The plaintiff in error incorporates a “motion for rehearing” and his exceptions to the auditor’s report in one writing, which is as follows: “And now comes the defendant and as matter of law moves a rehearing of above-stated case, because said report fails to show that defendant, by his attorney, made a motion to continue the hearing immediately after the call of said case, on the grounds: (a) That the leading counsel, John T. Dorsey, was not present at the hearing, and without fault of defendant; and to sustain said motion defendant Morgan Patterson was introduced, sworn, and testified as follows: ‘I am not ready in this case, because I have employed John T. Dorsey to do the main work at the trial. I employed A. N. Edwards to file my answer, and other counsel was to be employed to handle the case, except the filing of the answer.’ (c) A. N. Edwards stated in his place . . that he was only employed by defendant to file his answer, and that other counsel was to do the main part of the work at the trial; that he had not made sufficient preparation to go on with the hearing of the ease, for reasons- above stated. Said.motion was overruled and defendant forced to go to trial. (d) Because A. EL Burtz was allowed to testify, over objections of defendant’s counsel, as follows: ‘The defendant owes me $25 for an iron safe; $15 rent for a house, and attorney’s fees for representing him in two cases $200.’ This testimony being objected to by defendant’s counsel on the ground that the items were not included in the account sued on, and were clearly outside of said case, and therefore incompetent and immaterial. Said objection was overruled by the court and said testimony allowed to go in. (e) Because, over objections of defendant’s counsel at above hearing, A. EL Burtz, attorney for plaintiff, was allowed to exhibit his books of account to the said auditor without laying the foundation therefor, and without tendering the said books to opposing counsel or introducing the same in evidence in the regular way as allowed by law.”

Defendant further excepts as a-matter of law to the rulings and judgment of the auditor as follows: 1. The overruling of said demurrer as set out in the auditor’s report, paragraph 1. 2. Because, after the hearing of all the testimony, and A. EL Burtz having testified that he had no interest in the claim sued on, other than that the legal title was in him and was transferred in writing with a lot of other things to the company, and that he got value received for the same, defendant’s counsel made a motion -to dismiss the said suit, which motion was, overruled by the court. Defendant insists that also- this motion should have been included in the auditor’s report, but was not. 3. Defendant further excepts and insists that the testimony of said A. EL Burtz, with reference to the price of the safe above mentioned, and attorney’s fees above mentioned, amount being left out of said report, together with the house rent, should have been excluded on said motion because the same was not included in the account sued on or any part thereof. 4. Defendant further excepts to said answer as matter of evidence because it fails to state that the following checks were to be introduced at the .hearing of said case, the same being for the amounts, viz: 21st, 22, $7.50, 3-6-22; $7.50, 6-1-22, $15.00, 8-1-22, $18.00, in full Sept. 5, 22, $6.50 in full, “all hereto attached,” which said checks went to show payment of said house rent in full. 5. Because at said hearing defendant’s counsel sought to identify certain items of set-off by Kenneth Patterson, among which items were the following: Labor by overhauling motor, $15.00; connecting-rods $2.40; and lots of other items too numerous to mention, by stating some of said items to refresh the memory of the witness; the said work having been done quite a while before that time. The court refused to allow defendant’s counsel to refresh the memory of the witness by naming some of the most important items as labor done by the defendant. The court ruled out said testimony unless witness could state it from memory off-hand; and the auditor failed to state said rulings in his report. 6. The defendant further excepts as a matter of fact to the finding of the auditor as set forth in paragraph 3 of his report, and particularly to that portion of the auditor’s report in which he finds generally in favor of the plaintiff a specified sum, to wit, $472.59 principal and $96.46 interest, without specifying therein the portion of the evidence, or otherwise identifying the items allowed and disallowed by him in the calculation resulting in the finding of such balance, and especially such amount of interest. Wherefore petitioner prays the court that his motion for rehearing be sustained and that the report of the auditor be disallowed.”

Morgan Patterson swore .that “the statements contained in the above and foregoing motion and exception to the auditor’s report as set out are true.”

.Even if.it be granted that in a case like this, where the ground upon which the motion for a rehearing is based is not verified by the. auditor’s report or certified by the auditor, or verified by the record, it be proper for this court to pass upon the question raised, still, if the case were recommitted and the showing for a continuance were precisely as set out by counsel, and the court overruled it as stated, the motion for a continuance would not be good. “The unexplained absence of the counsel, on whom the defendant 'mostly relies,’ is not a good ground for continuance.” Long v. State, 38 Ga. 491 (4). “The mere absence'of an attorney without the consent of the client is not a sufficient ground for the continuance of a cause.” Allen v. State, 10 Ga. 85 (1). “It is not error to overrule a motion for continuance based upon the absence of leading counsel, where no good and sufficient reason is shown why he is absent. Where there is no attempt to explain the cause of his absence, the motion should be overruled.” Wilson v. State, 6 Ga. App. 16 (1) (64 S. E. 112). It would therefore be useless and vain to recommit the case in order that the auditor might pass on a ground of continuance so palpably without merit.

Subdivision (d) of the exceptions complaining of the admission of certain testimony of A. H. Burtz is controlled adversely to the plaintiff in error by the following ruling in the case of Waycross R. Co. v. Offerman, 119 Ga. 983 (1) (47 S. E. 582.). “In passing upon exceptions of law to rulings alleged to have been made by an auditor, the court can not look to the exceptions alone to ascertain what these rulings were. The grounds upon which these exceptions are based must be verified by reference to the auditor’s report; and if the report affords no means of verification, the exceptions can not be considered, unless otherwise certified by the auditor.” See Civil Code (1910), § 5136.

Subdivision (e) is subject to the same infirmity indicated in the previous division of this opinion, and is controlled by the Waycross R. Co. case there cited. Furthermore, this exception is obviously incomplete. See Mason v. Commissioners, 104 Ga. 35 (30 S. E. 513); Hudson v. Hudson, 119 Ga. 637 (46 S. E. 874).

Exception number 1 is to “the overruling of said demurrer as set out in the auditor’s report.” The report merely states that there was a demurrer to the plaintiff’s petition upon the ground that the plaintiff had no interest in said suit, etc. How can this court determine the question raised when neither the petition nor the demurrer appears in the record ? This exception was properly dismissed.

Exception number 2, that the court refused to dismiss the action on motion, etc., is clearly without merit. The ground insists that the motion should have been included in the auditor’s report. This was not the proper way to perfect the report, and no method prescribed by law was followed to have the motion incorporated in the report. Furthermore, the fact that the said motion was ever made is not certified, nor verified by the record. See Waycross R. Co. v. Offerman, supra.

Exception 3 is obviously too incomplete for consideration. See also, in this connection, the case of Waycross R. Co. v. Offerman, supra.

The checks referred to in exception numbered 4 are very meagerly described, and are not attached to the exceptions as stated therein. “Exceptions should go to what the auditor reported, not to what lie did not report.” Collinsville Granite Co. v. Phillips, 123 Ga. 830 (3) 835 (51 S. E. 666).

Exception 5, complaining that the court refused to allow defendant’s counsel to refresh the memory of a witness by naming certain items of set-off, is controlled by the case of Waycross R. Co. v. Offerman, supra. Furthermore, the exception is too incomplete for consideration.

Exception 6 to paragraph 3 of the auditor’s report does not complain that the finding of the auditor was not authorized by the evidence, but is in effect a criticism that the manner in which the finding was arrived at is not set out in the report. If the report was incomplete in the regard specified, a motion to recommit was the proper remedy. See Civil Code (1910), § 5139, which reads in part as follows: '“For indefiniteness, omissions, errors of calculation, failure to report evidence, errors of law, or other proper cause, the judge may recommit the report for such further action as may be proper . . .”

For no reason assigned is there error in this case and the court did not err in dismissing the exceptions and rendering a judgment for the defendant in error.

Judgment affirmed.

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


text:
    19243.
    JORDAN v. INVESTMENT CORPORATION OF SAVANNAH.
    Decided January 16, 1929.

      Lewis A. Mills, Henry McAleer, for plaintiff in error.

      H. Wiley'Johnson, contra.
   Luke, J.

The Investment Corporation of Savannah brought, trover against W. B. Jordan in the city court of Savannah for an automobile. Not having been replevied, the automobile was sold by order of court, and brought $515. The defendant’s amended answer was stricken on motion, and he excepted pendente lite to the judgment striking it. After the introduction of evidence, the court directed a verdict for the plaintiff for $515 and the defendant filed a motion for a new trial, based upon special as well as general grounds. This motion was overruled, and the defendant excepted.

The trover action was brought in the usual form, and the answer and plea to the petition, by paragraph, was substantially as follows: (1) Paragraphs 1, 2, and 3 of the petition are denied. (2) On January 28, 1926, T. P. Saffold, president of the plaintiff corporation, made an agreement with the defendant “whereby said Saffold agreed to pay him ten per cent, on all lots sold” on a designated tract of land belonging to the plaintiff, agreeing to advance the defendant $100 per month as a drawing account, which was to be repaid from “sales to be made by him when the property was placed on the market.” (3) Said Saffold, as president of the plaintiff corporation kept stating to defendant that “very shortly the lots would be put on the market,” but always failed and refused to do so; and the defendant expended $92 “in procuring a list of prospects, at the direction of Mr. Saffold, to be seen and lined up on sales, so that all of the ground work could be completed when the lots were put on the market; this amount also being advanced to be repaid from sales to be made by him when the lots were put on the market.” (4) “Defendant owned a Buick sedan on which all of the purchase-price had been paid except $773.28. The said Saffold agreed to advance the said balance which was due the General Motors Acceptance Corporation, to complete the payment of the purchase-price on said Buick sedan, and to charge it against the defendant, to be considered as a portion of the drawing account, and to be repaid by said defendant from sales to be made by him on said Colonial Estate lots when the same were placed on the market. . . In this connection, plaintiff had defendant execute to it a bill of sale covering said automobile, as security therefor in case of the death of the defendant prior to his sale of said lots.” (5) “Defendant shows that by reason of his contract had with the plaintiff corporation, the amount advanced on the automobile is not due or payable, for the reason that said plaintiff corporation, acting by and through its- president, T. P. Saffold, has failed and refused to put the said Colonial Estate lots on the market and to give the defendant an opportunity to close any sales.” (6) “Defendant expended much time and effort in seeing many prospects indicated by said SafEold, president of plaintiff corporation, and submitted to said SafEold” three named purchasers “who were ready, able, and willing to buy, but which sales were refused by said SafEold and blocked by him.” Said three parties “will purchase when the said lots are placed on the market, unless discouraged by the said SafEold.” (7) One of said parties selected a lot on which the defendant’s commissions of ten per cent, would have been $750. The two lots selected by the other two parties were priced at $17,500 each, and the defendant’s commissions on them would have been $3,500. (8) On June 1, 1927, said “Saifold, president of plaintiff corporation, refused to further carry out plaintiff’s contract with” the defendant, and “fired him.” (9) Under said contract said lots were to be placed on the market on or before March 1, 1927, “which plaintiff failed and refused to do.” (10) “By reason of the breach of contract on the part of said plaintiff corporation in not placing said lots on the market for sale as agreed, and in refusing to carry out the terms of its contract with him, he has been injured and damaged in the sum of $25,000.” (11) “Defendant shows further that he sues in this action for the sum of $4,250, a portion of the amount claimed, as shown in the said statement, on the basis of sales which would have been made if they had not been blocked by action on the part of said SafEold, and this amount is shown as a separate item on said statement, and apart from the remainder of the general damages.” Judgment was asked for $23,226.20. The “bill of particulars” attached to the plea follows: “Investment Corporation of Savannah to W. J.

Jordan, Dr.
“To damages sustained by breach of contract,......$20,750.00
“To 10% com. Fred A. Davis lot, $7,500.00........ '750.00
“To 10% com. Henrick Wallin lot, $17,500.00..... 1,750.00
“To 10% com. Arthur T. Comer lot, $17,500.00.... 1,750.00
“To mailing list for prospects, adv., etc., as shown on books of the plaintiff.......................... 92.00
$25,092.00
“Or. Drawing account 10 months.................$ 1,000.00
“Amount advd. on automobile per agreement....... 773.80
“Amount advd. on mailing-list .................. 92.00
$ 1,865.80
“Balance ................................... $23,226.20”

The following amendment to paragraph 4 of the plea was allowed : “which said bill of sale was subject to the conditional sales contract executed by him to the East Coast Motor Company, of West Palm Beach, Ela., the party from whom the said automobile was purchased, which said contract was by them transferred to the General Motors Acceptance Corporation, and in turn by them transferred to the plaintiff, and is the instrument under which the plaintiff holds title to the said automobile by reason of their having advanced the balance due thereon for the account of defendant upon the terms above set forth.”

The plaintiff’s demurrer and motion to strike the defendant’s answer follows: “Now comes the plaintiff in the above-stated case and demurs to and moves to strike the second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth and eleventh paragraphs of the defendant’s answer, on the ground that same constitute no valid defense to this action of trover.”

The court’s judgment upon the demurrer was: “I have come to the conclusion that, construed with reference to the prior law and the context, that section 4484 of the Code is not broad enough to authorize the defense and counterclaim set out in the paragraphs (including the amendment thereto) sought to be stricken by the foregoing motion, and accordingly the motion is sustained and said paragraphs of the answer are hereby stricken.”

Section 4484 of the Civil Code (1910), which is a codification of the act of 1903 (Ga. L. 1903, p. 84), reads: “When personal property is sold and the vendor retains the title thereto in himself until all the purchase money is paid, and the vendor or his assigns has brought or may hereafter bring suit to recover the possession of such personal property, the defendant in such action may plead as set-off any demand or claim that he may have against the plaintiff, or may recoup any damages that he has sustained by reason of any failure of consideration, or any defects in such personal property, or any breach of contract by the plaintiff, whereby the defendant has, in any way, been injured or damaged. If the plaintiff elects to take a money judgment for the value of such property, the amount of set-off or damages allowed the defendant by the jury shall be deducted from the value of such property and the amount allowed for the hire or use thereof, and the plaintiff shall only recover the excess; but if the amount of set-off or damages allowed the defendant shall exceed the value of the property sued for and the hire thereof, then the defendant shall have judgment against the plaintiff for such excess. If the plaintiff elects to take a judgment for the property sued for, then the amount allowed the defendant as set-off or damages shall be a lien on such property, superior to all other liens except liens for taxes.”

The defendant in error contends that the statute is only applicable to eases brought by “the vendor or his assigns.” We think that the -statute is sufficiently broad to include not only the immediate assignee of the vendor, but also the assignee of such assignee, and that the plaintiff in error had the right to interpose any defense allowable under the statute.

It is further contended that the statute was not punctuated properly, and that a comma should be inserted after the word “damages” and before the word “that,” so that it would read: “The defendant in such action may plead as a set-off any demand or claim that he may have against the plaintiff, or may recoup any damages, that he has sustained,” etc; and that when so punctuated and properly construed, the statute is applicable only to “such . claims or demands against the plaintiff as grow out of the contract of purchase.”

This section of the code is punctuated as was the original act, and it can not be fairly concluded that the “missing comma” was left out by inadvertence or error.

Eecoupment lies where the demands arise out of the same transaction, whereas set-off is not so confined, and “includes mutual debts and liabilities.” See Civil Code (1910), § 4351. We do not believe .that the lawmakers were oblivious of this difference when they entitled the act of 1903, “An Act to allow defendants in certain trover cases to plead set-offs, or to recoup in damages where suits have been brought to ¡recover possession of personal property; to provide the manner in which such set-offs ox damages are allowed, and for other purposes;” or when they clearly gave the defendant the right to “plead as set-off any demand or claim that he may have against the plaintiff.” Furthermore, the language quoted from the act of 1903 in the last clause of the preceding sentence means practically the same thing as the clause “all mutual debts.and liabilities/’ used in section 4351 of the Civil Code (1910), where set-off and recoupment are differentiated. To hold with the contention of the defendant in error would be, in effect, to say that while the lawmakers clearly said one thing they meant something else, and this we have neither the inclination nor the right to do. We decline to hold that the legislators intended to reduce the extensive field of set-off to the more limited field of recoupment. If the statute is too broad in its scope (and we think it is), the lawmakers, and not the courts, will have to change it.

We see nothing in the cases of Rogers v. Otto Gas Engine Works, 7 Ga. App. 587 (67 S. E. 700), and Finance Co. of the South v. Jones, 33 Ga. App. 94 (125 S. E. 510), that militates against the conclusion we have reached.

Counsel contends in his brief that in any event the amended plea sets out no defense, for the reason that one Saffold, and not the Investment Corporation of Savannah, both made and breached the alleged contract with the defendant for the sale of lots. The demurrer points out no defect in the pleading, and, considering the amended answer as a whole, it was sufficient' to withstand the demurrer interposed. ‘ .

Our conclusion is that the act under consideration allows the defense of set-off, and that, as against the demurrer and motion to dismiss, the amended plea set up a defense to the action and should not have been stricken. Having reached this conclusion, it is not necessary to consider any other question raised by the record.

Judgment reversed.

Bloodworth, J., concurs. Broyles, G. J., dissents.


text:
    19312.
    HILSMAN v. SMITH.
    Decided January 16, 1929.

      Milner & Farlcas, for plaintiff.

      Pottle & Hofmayer, Howell Cobb, for defendant.
   Luke, J.

Counsel for both sides, evidently having in mind the issues on the trial, argue in their briefs as to whether or not a husband is liable for the torts committed by his wife while driving an automobile. The record before us, though referring to “the car,” does not show whether the wife was driving the car for her own pleasure and convenience, or on her own business, or with or without her husband, or as agent of her husband, or by his direction, or that she was driving a car at all, or that she had an accident of any kind, or that she injured the plaintiff or any one else. We are not called upon by the assignment of error in the bill of exceptions to decide any question of liability. The record before us shows that the case in the trial court was “an action for damages,” but does not show from what the action arose.

The bill of exceptions sets out certain evidence of the defendant, Smith (called as a witness by the plaintiff), as to the ownership of “the car;” and further sets out that the court directed a verdict for the defendant; that the plaintiff assigns error on this direction of a verdict, because “under the facts testified to by Mr. Smith it was a question for the jury to say whether the car belonged to defendant or his wife;” that “Plaintiff states that none of the record is necessary to a clear understanding of the errors complained of, because the record has been reduced by agreement to one question as to whether, under the testimony of Mr. Smith, the court was correct in directing a verdict.” The trial judge certifies “that the foregoing bill of exceptions is true and contains all the evidence and specifies all the record necessary to a clear understanding of the errors complained of.”

Thus it will be seen that we are only called upon to decide whether the evidence relating to the ownership of a car, as set out in the bill of exceptions, was sufficient to raise an issue of fact for submission to the jury. We think it was. While the defendant testified that the car belonged to his wife, he testified also, that he had paid for the car with a draft on the Blakely Hardwood Lumber Co., and it was charged to his account; that he gave the car in for taxes in his own name; that he kept the car at his home and used it when he wished; that since the accident he has traded in the car and was allowed $250 in the trade; and that he gave his notes for the balance due on the new car received in the trade.

There was sufficient evidence to raise an issue of fact as to the ownership of the car, and the court erred in directing a verdict for the defendant. See, in this connection, Scarborough v. Walton, 36 Ga. App. 428 (3) (136 S. E. 830).

Judgment reversed.

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


text:
    19326.
    GOLDEN v. THE STATE.
    Decided January 16, 1929.

      Ben A. Way, for plaintiff in error.

      Chalmers Chapman, solicitor, contra.
   Bloodworth, J.

The defendant was accused of a violation of what is known as “the labor-contract act” of 1903, by having procured from his employer ten dollars after having agreed to- perform certain services. To authorize a conviction of a violation of that act (Penal Code of 1910, § 715), the evidence must show the procurement of money, or other thing of value, on a contract to perform services and with the intent to defraud at the time the money or other thing of value was procured. The evidence in this case fails to show that there was any intent to defraud when the money was procured, and, therefore, the verdict was unauthorized.

Judgment reversed.

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


author: Bell, J.

text:
    18037.
    Endsley v. Georgia Railway & Power Company.
    Decided January 22, 1929.

      G. Seals Aiken, for plaintiff.

      Colquitt & Conyers, Sidney Smith, for defendant.
   Bell, J.

In this case the Supreme Court, on certiorari, having held that this court, while correctly reversing the judgment of the trial court, placed its ruling upon an erroneous ground, and having affirmed the judgment of this court, with direction, the former judgment of this court (37 Ga. App. 439, 140 S. E. 386), is vacated, and the rulings and judgment of the Supreme Court (167 Ga. 439) are adopted and applied in lieu thereof.

Judgment reversed, with direction.

Jenkins, P. J., and Stephens, J., eoneur.


author: Stephens, J.

text:
    18776.
    Brown v. Western Union Telegraph Company
   Stephens, J.

1. Whether or not it is a reasonable regulation, either as a part of the contract or as a rule of the telegraph company, for the telegraph company to exclude from free delivery of telegrams any portion of a city within its legal territorial limits beyond a designated distance from an office of the company in that city, yet, where the rule or regulation provides that the telegraph company will, as the sender’s agent, at his request, deliver the message for an extra charge for such service, and where the telegraph company accepts a message for transmission over its wires to a distant city and collects the charges therefor, directed to a person whose address is given as a designated house number on a designated street in that city, and the company, at the time of receiving the message, fails to inform the sender that it will not be delivered free, because the place to which it is directed is beyond the free-delivery limits prescribed by the company in the city to which the message is directed, and the company fails, after the message has been transmitted, to notify the sender that the message can not be delivered because the place to which it is directed is beyond the free-delivery -limits in the city to which it is directed, the company by such conduct is negligent and is thereby estopped from setting up the rule, whether as a reasonable regulation or as a contract right, absolving it from its negligence. Bryan v. Western Union Telegraph Co., 133 N. C. 603 (45 S. E. 938); Hood v. Western Union Telegraph Co., 135 N. C. 622 (47 S. E. 607) ; Lyles v. Western Union Telegraph Co., 77 S. C. 174 (57 S. E. 725, 12 L. R. A. (N. S.) 534) ; Western Union Telegraph Co. v. Kuykendall (Tex Civ. App.), 86 S. W. 61. This is true although the sender may know that the sendee’s address is more than a mile beyond tile office of the telegraph company in the city to which the message is directed. The Federal rule which prevents a waiver or'estoppel by a public-service corporation, where such waiver or estoppel operates to give a preference or to effect a discrimination, does not operate to prevent the corporation from becoming estopped, by reason of its own negligent conduct or bad faith, from asserting a contract right, or from relying upon a valid rule or regulation of the corporation, governing the conduct of its business.

Decided January 22, 1929.

Adhered to on rehearing, March 2, 1929.

2. This being a suit ex delicto by the sender of an interstate message, against the telegraph company, in which the petition prays for nominal damages for the failure by the defendant to deliver the message to the person to whom it was addressed, and, under the above rulings, the evidence authorizing a verdict for the plaintiff in nominal damages, the court erred in awarding a nonsuit. Western Union Telegraph Co. v. Petteway, 21 Ga. App. 725 (94 S. E. 1032); Wright v. Smith, 128 Ga. 432 (57 S. E. 684) ; Sparks Milling Co. v. Western Union Telegraph Co., 9 Ga. App. 728 (72 S. E. 179); Civil Code (1910), § 4502.

3 Whether the rule relieving the telegraph company from free delivery of telegraphic messages beyond certain territorial limits was a rule adopted by the interstate commerce commission is not a question presented here, since the evidence fails to disclose the promulgation of such rule by the commission. Robinson v. Baltimore &c. Railroad Co., 222 U. S. 506 (32 Sup. Ct. 114, 56 L. ed. 288) ; House v. Chicago &c. Railroad Co., 30 S. D. 321 (138 N. W. 809, Ann. Cas. 1915C, 1045) ; Thompson v. San Antonio &c. Railroad Co., 11 Texas Civ. App. 145 (32 S. W. 427) ; 23 C. J. 102.

Judgment reversed.

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

Porter & Mebane, for plaintiff.

Graham Wright, Howell, Heyman & Bolding, for defendant.


text:
    18816.
    DOWNS v. BEDFORD.
    Decided January 22, 1929.

      Morris Machs, for plaintiff in error.

      Clifford E. Thomas, Dillon, Calhoun & Dillon, contra.
   Stephens, J.

(After stating the foregoing facts.) 1. While the method prescribed in sections 3366 et seq. of the Civil Code of 1910 for the enforcement of a laborer’s lien by a summary and ex parte levy upon property belonging to the employer is purely remedial, the lien itself is not created by the levy but is pre-existing, and, where not given by the contract is, so far as it arises in this State, purely statutory, and, as provided by statute, codified in section 3339 of the Civil Code of 1910, arises upon the completion of the contract of labor. See also, in this connection, sections 3329 and 3334 of the Civil Code of 1910; White v. Idelson, 38 Ca. App. 612 (144 S. E. 802), and cases there cited.

The Georgia statute, supra, which provides for the creation of a laborer’s general lien, not being extraterritorial, and the lien not being one existing at the common law, no lien in favor of a laborer for labor performed in the State of Florida can arise under a contract made within that State, in the absence of a provision therefor in the contract of labor, or a lien created by a statute of that State. See Porter v. Lively, 45 Ga. 159. The case of Thurman v. Kyle, 71 Ga. 628, in which it was held that under a contract for work done and materials furnished under a contract made in the State of Alabama, a lien therefor was enforceable in the courts of Georgia, is distinguishable from this case, since in that case the contract was performed within the State of Georgia. This case is distinguishable also from that of Davis v. DeVaughn, 7 Ga. App. 324 (66 S. E. 956), where it was held that a claim for rent arising under a contract of rental, made and performed in tiie State of Alabama, was enforceable by a distress warrant sued out in the courts of Georgia. In that case the court held that the purely remedial procedure given by distress warrant in the courts of this State, for the collection of rent, was available to enforce any contract for the payment of rent, whether made in this State or elsewhere, and did not hold that a distress warrant was available for the enforcement of any right to a lien for rent existing under the laws of another State. The statute of Georgia, as codified in section 5390 of the Civil Code of 1910, which affords a remedy by distress warrant for the collection of rent, purports to be only a summary remedy, not for the enforcement of any lien, but for the enforcement of a contractual obligation to pay rent. It is purely a legal remedy to enforce a contract, wliereas, on the other hand, the statutory provisions of this State, as contained in sections 3366 et seq. of the Civil Code of 1910, relative to the summary process for collecting monies due under contracts of labor, relate specifically to the enforcement of the liens arising by law as security for such amounts due. Assuming that the decision in Davis v. DeVaughn must be construed as holding that the remedy by distress warrant in that case was for the enforcement of a landlord’s lien for rent arising under a foreign contract, it might be sustainable upon the theory that the right to such a lien is a common-law right inhering in any rent contract in a State, such as Alabama, where the common law prevails. While under the common law such a right was not in the strict sense a lien, it has in some instances (as, for instance, within the intended meaning of the bankruptcy act) been regarded to all intents and purposes as a lien. See the opinion of Mr. Justice J. E. Lamar in Henderson v. Mayer, 225 U. S. 639 (32 S. Ct. 699, 56 L. ed. 1233). Whatever may be the true intent and meaning of the decision in Davis v. DeVaughn, supra, a ruling as respects section 5390 of the Civil Code of 1910 is not necessarily applicable to sections 3366 et seq. The ruling in Davis V. DeVcmghn is perhaps irreconcilable with that in Henderson v. Mayer, supra, and In Re Burns, 176 Fed. 633, construing the Georgia law with reference to a landlord’s lien for rent, in opinions written respectively by Justice Lamar and Judge Speer.

This being a proceeding under a statute of this State as codified in sections 3366 et seq. of the Civil Code of 1910, for the summary enforcement of a laborer’s general lien for work done in the State of Florida under a contract executed in that State, and, upon the trial of an issue made by the defendant’s counter-affidavit, it not appearing, from the evidence, that such a lien was created by the contract, or that it arose by virtue of a statute of that State, there does not' appear to exist a lien for enforcement in the courts of this State.

It appearing that certain personal property belonging to the defendant was levied upon and seized by the levying officer under the foreclosure proceedings in satisfaction of the plaintiff’s alleged lien, and that this property was not replevied, no legal judgment can be rendered for the plaintiff except one enforcing his alleged lien for labor. Civil Code (1910), § 3367; Triest v. Walts, 58 Ga. 73; Argo v. Fields, 112 Ga. 677 (37 S. E. 995). The judge of the superior court erred in overruling the certiorari.

Judgment reversed.

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


text:
    18822.
    Western Union Telegraph Co. v. Murrow.
   Stephens, J.

1. Where a telegraph company fails to transmit to the point of destination a telegraphic message announcing to .the person to whom it is addressed the contemplated arrival, by a designated train at that point, of the sender of the message, and where, by reason of the failure of the telegraph company to transmit the message, no arrangements are made by the sendee to meet the train at the station and convey the sender to the home of the sendee, and where the sender, after learning, when en route by train to the station to which the message was addressed, that the message has not been received at that station, and, assuming that he will not be met there by the sendee of the message, leaves the train immediately and before its arrival at the station to which the message was addressed, and undertakes to travel by buggy to the home of the sendee of the message, which is about eight miles distant from the point of the sender’s disembarkation from the train, and the sender, while making the trip in the buggy, becomes cold, chilled, and wet, and contracts a severe cold as a result of unfavorable weather conditions, and by reason thereof suffers physical pain and inconvenience, and is unable to work for more than a month; and, had the telegraphic message been delivered at the point of destination, it would have been received by the sendee, who would have had the sender met with wraps, etc., sufficient to have protected him against inconvenience or sickness resulting from the weather, the injuries thus sustained are not the proximate result of the failure of the telegraph company to transmit the message, and are too remote for the recovery of damages therefor against the telegraph company for failure to transmit the message. Western Union Telegraph Co. v. Manson, 21 Ga. App. 737 (94 S. E. 1033) ; Charleston & Western Carolina Ry. Co. v. Hart, 23 Ga. App. 161 (97 S. E. 866) ; Young v. Western Union Telegraph Co., 168 N. C. 36 (84 S. E. 45) ; Johnson v. Western Union Telegraph Co., 177 N. C. 31 (97 S. E. 757) ; Ross v. Western Union Telegraph Co., 81 Fed. 676. The ruling here made is clearly distinguishable from the rulings in Western Union Telegraph Co. v. Ford, 8 Ga. App. 514 (70 S. E. 65), and Glawson v. Southern Bell Tel. & Tel. Co., 9 Ga. App. 450 (71 S. E. 747), which seem to have been subsequently disapproved by the Supreme Court in Southern Bell Telephone & Telegraph Co. v. Reynolds, 139 Ga. 385 (77 S. E. 388).

Decided January 22, 1929.

William L. Glay, for plaintiff: in error.

SKeppard & Buhes, contra.

2. In a suit by the sender of the message, against the telegraph company, where in the petition the plaintiff seeks to recover compensation only for damages sustained as indicated above and which are not legally recoverable, the petition fails to set out a cause of action, and the court erred in not sustaining the demurrer thereto. See, in this connection, Wright v. Smith, 128 Ga. 432 (57 S. E. 684); Sparks Milling Co. v. Western Union Telegraph Co., 9 Ga. App. 728 (72 S. E. 179) ; Truitt v. Rust & Shelburne Sales Co., 25 Ga. App. 62 (102 S. E. 645). The subsequent proceedings, resulting in a verdict and judgment for the plaintiff in a sum representing a recovery for damages sustained as indicated above, were nugatory.

Judgment reversed.

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


text:
    18833.
    Benton Brothers Drayage & Storage Co. v. Weeks.
    Decided January 22, 1929.
   Bell, J.

In this case, after a careful consideration of the entire record, this court is of the opinion that the evidence authorized the verdict found in favor of the plaintiff, and that no reversible error was committed in any of the court’s rulings or instructions. The judgment refusing a new trial is therefore affirmed.

Judgment affirmed.

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

Henry McAleer, Lewis A. Mills, for plaintiff in error.

Edwin A. Cohen, Edwin J. Feiler, contra.


author: Jenkins, P. J.

text:
    18852.
    New York Life Insurance Company v. Smith.
    Decided January 22, 1929.
    Adhered to on rehearing, March 2, 1929.
   Jenkins, P. J.

1. “The authority of a special agent will be construed to include all necessary and usual means for effectually executing it.” Bass Dry Goods Co. v. Granite City Mfg. Co., 119 Ga. 124 (45 S. E. 980) ; Civil Code of 1910, § 3595. Thus, where the transferee and owner of notes payable to a loan company and secured by deeds to land places them in the hands of the payee for collection by foreclosure, a power is created in the latter to procure the services of an attorney, if necessary, to collect the notes and enforce the security. Strong v. West, 110 Ga. 382 (2) (35 S. E. 693).

2. In such a ease an attorney employed by the agent to bring foreclosure suits on behalf of the principal against the persons indebted to the principal is not bound to take notice of secret instructions or limitations upon the authority of the agent, whereby the principal undertakes to stipulate that the agent shall bear all expense of such proceedings. Bass Dry Goods Co. v. Granite City Mfg. Co., supra.

3. Under the testimony of the plaintiff in the instant case, to the effect that his fees were payable when the foreclosure proceedings were concluded and the judgments realized on, or the land sold, his right of action did not accrue until such proceedings had been terminated, or until his discharge as counsel by the defendant; neither of which events occurred more than four years prior to the action. Accordingly, the claim was not barred by the statute of limitations.

4. The evidence authorizes the verdict of the jury upon the issues of fact, and for no reason urged can it be here set aside.

Judgment affirmed.

Stephens and Bell, JJ., concur.

Bryan & Middlebroolcs, W. D. Buie, J. A. Alexander, for plaintiff in error.

W. M. Story, H. W. Nelson, Little, Powell, Smith & Goldstein, contra.

ON REHEARING

Counsel for the plaintiff in error, in filing their motion for rehearing, continued to deal with the case as one of principal and agent, but, in their argument upon this motion, assumed a new position, to the effect that the relation of principal and agent did not exist between the New York Life Insurance Company and the Carolina Bond and Mortgage Company at all, but that under the contract of purchase by which the New York company became the owner of the notes and security deeds, and by which the Carolina company was obligated to foreclose the security deeds at its own expense when called upon to do so, the Carolina company, upon assuming to fulfill such obligation, occupied the relation of independent contractor, rather than that of an agent. Section 3569 of the Code provides that the “relation of principal and agent arises whenever one person, expressly or by implication, authorizes another to act for him.” In our opinion, the New York company having authorized the Carolina company to foreclose these securities in its name, and having delivered such securities to the Carolina company for such purpose, one dealing with the Carolina company under such circumstances would be authorized to assume that it was empowered to act for and on behalf of the New York company in effectually executing the purposes for which the securities were delivered. The attorney employed by the Carolina company to foreclose the securities in the name of the New York company had a right to infer the fact of agency by reason of such, circumstances and the apparent relationship. Cable Co. v. Walker, 127 Ga. 65 (56 S. E. 108). Such being the case, the New York company could not absolve itself from liability on account of any secret and undisclosed agreement between itself and the Carolina company, by which such apparent agent was itself to bear the cost of such foreclosures. Judgment adhered to.


text:
    18854.
    Continental Trust Co. v. Tennille Banking Co.
    Decided January 22, 1929.

      Anderson, Rountree & Crenshaw, plaintiff in error.

      E. W. Jordan, J. K. Jordan, contra.
   Bell, J.

This case is similar in its facts to the ease of Continental Trust Co. v. Bank of Harrison, 36 Ga. App. 149 (136 S. E. 319), and is the identical case previously before this court (36 Ga. App. 156, 136 S. E. 323), wherein a verdict for the defendant was set aside and a new trial ordered. The applicable principles of law were adjudicated in those eases and in Continental Trust Co. v. Bank of Harrison, 162 Ga. 758 (134 S. E. 775, 50 A. L. R. 412), and the only question now presented is whether the verdict for the plaintiff upon the second trial was authorized by the evidence. Held:

1. The defendant having admitted the making of the warranties sued on can not now claim that in selling the paper it was acting only as a broker, and for that reason should not be held to such obligations. Furthermore, the evidence did not demand a finding that, if the defendant was really acting as broker, this fact was known to the plaintiff.

2. The evidence for the plaintiff, apart from that of the defendant, made a prima facie case (Tennille Banking Co. v. Continental Trust Co., 36 Ga. App. 156, 136 S. E. 323), and this was not conclusively rebutted by the defendant’s evidence. And this is true even though it may have appeared without dispute, from the evidence as a whole, that there were other sufficient means of identifying the cotton where the receipts did not bear the tag numbers, and thus that the receipts were not spurious. The jury could still have found, from all the evidence, that the cotton was not in existence and in the hands of the bailee at the times when the defendant made the warranties. There were material conflicts in the testimony, besides evidence of admissions and other circumstances, in view of which it was the province of the jury to determine the credibility of the witnesses by whom the defendant sought to establish its contentions. Whiddon v. Hall, 155 Ga. 570, 578 (118 S. E. 347); Chero-Cola Bottling Co. v. Southern Express Co., 29 Ga. App. 656 (2, 3) (116 S. E. 325); Redd v. Lathem, 32 Ga. App. 214 (1) (123 S. E. 175); Blackwell v. Dannenberg Co., 32 Ga. App. 307 (2, 3) (123 S. E. 179) ; Haas v. Godly, 33 Ga. App. 218 (1 c) (125 S. E. 897).

2. The verdict for the plaintiff was authorized, and there was no error in refusing a new trial.

Judgment affirmed.

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


text:
    18898.
    Cull v. Cull, executor.
    Decided January 22, 1929.

      Vance Gusier Jr., for plaintiff in error.

      J. T. Goree, R. L. Cox, contra.
   Jenkins, P. J.

1. While no devise or legacy passes title to property devised or bequeathed until the assent of the executor is given to the devise or legacy (Civil Code of 1910, § 3895), the assent of the executor may be either expressed or implied from his conduct. Civil Code, § 3896. Such assent perfects the inchoate title of the legatee, and, once given, is generally irrevocable. Citizens Bank of Vidalia v. Citizens & Southern Bank, 160 Ga. 109 (2) (127 S. E. 219).

2. In the instant suit in trover, brought by the executor of the will of a deceased person to recover from a legatee named in the will certain personalty, there was evidence from which the jury might have found that the executor had assented to a legacy provided by the will of the testator and bequeathing the property to the defendant. It was, therefore, error for the trial judge to direct a verdict in favor of the plaintiff.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    18927.
    HERNDON et al. v. BRADDY.
    Decided January 22, 1929.

      Luther U. Bloodworth, E. W. Maynard, Edward F. Taylor, for plaintiffs.
    J. P. Burnett, for defendant.
   Stephens, J.

(After stating the foregoing facts.) The question here presented is whether a judgment in favor of a garnishing creditor against the fund caught by the garnishment and brought into the court has a lien upon the fund superior to that of a common-law judgment of older date. Judge Jones evidently followed the decision of this court in General Motors v. Bank of Valdosta, rendered December 10, 1923, and reported in 31 Ga. App. 475, which holds that the rule laid down in Garrard v. Moffett, 51 Ga. 93, in the year 1874, construing the section of the Code of 1873 which is section 5290 of the Civil Code of 1910, codifying the acts of 1822 and 1856, that an older judgment has a first lien upon the fund brought into court by a subsequent garnishing creditor, was abrogated by the act approved November 11, 1901 (Ga. L. 1901, p. 55), and codified in § 5273 of the Civil Code of 1910. Judge Chambers was evidently of the opinion that under the decisions of the Supreme Court and the act of 1901, supra, properly construed, the lien of the older judgment was superior to that of the lien of the subsequent garnishing creditor.

Section 5290 of the Civil Code of 1910 reads as follows: “All money raised by virtue of the process of garnishment under this Code shall be paid over to the creditors of the defendant, according to the priorities now established by law — the expenses of the moving creditor being first paid pro rata by the judgment creditors receiving the benefit of his diligence.” In Garrard v. Moffett, 51 Ga. 93, supra, it was held: “Where money is brought into court under an execution issued upon a judgment against a garnishee, the oldest judgment against the defendant takes the fund.” In Patterson v. Beck, 133 Ga. 701 (2) (66 S. E. 911), it was held that “A creditor of a corporation who brought a common-law suit against his debtor and caused a summons of garnishment to be served upon a bank in which the debtor had funds on deposit, acquired no such lien on the funds in the hands of the garnishee as, ipso facto, to give him a right of priority of payment over other creditors, without regard to the date when their respective judgments should be obtained.” In the opinion of Judge Lumpkin (p. 709) occurs the following: “As between judgments their priorities are determined by the time of their rendition, and an older judgment will take a fund brought into court by a garnishment based on a younger judgment, or on the suit in which the younger judgment was rendered. The service of the summons gives to the holder of the junior judgment no prior right in the distribution of the funds.” See also Carr v. Benedict, 48 Ga. 431. It is clear, therefore, that the lien of the older judgment upon the fund brought into court by a subsequent garnishing creditor is superior to the lien of the latter, unless the rule laid down by the Supreme Court in Garrard v. Moffett, supra, has been changed by the act of 1901, supra, as codified in § 5273 of the Civil Code of 1910. This act reads as follows: “Whenever a summons of garnishment is served on any person, and such person, after the date of such service, becomes indebted to the defendant, such subsequent indebtedness, immediately upon its accruing shall become subject to the lien of such garnishment, and no payments made by the garnishee to the defendant, or to his order, after the date of the service of the garnishment, shall defeat the lien of such garnishment. The service of a summons of garnishment shall in all cases operate as a lien on all the garnishee’s indebtedness at the date of the service and also on all future indebtedness accruing up to the date of the answer, and such lien shall not be defeated by any payments by the garnishee or overdrafts by the defendant or other arrangements between" the defendant and the garnishee.” This act, which was the result of the efforts of tlie Honorable John M. Slaton, then a member of the House of Representatives, was designed solely to give relief from a condition of affairs, obtaining particularly in Fulton county, whereby employers, after having been served with process of garnishment in suits against their employees, would advance to the employees their wages or salaries before the services therefor had been rendered, thereby successfully defeating an impounding of the wages or salaries by garnishment sued out by creditors of the employees. As the title of this act, as well as its body, indicates, the act is merely amplifying in its nature, and changes no existing laws, except so far as necessarily results from the act’s amplifying provisions. The act simply extends an established rule and brings a new situation within its scope. It does no more than extend the scope of the garnishment lien, and in no wise affects the character of the then-existing liens arising by virtue of the garnishment laws. No enhancement in dignity is given by the act to garnishment liens. No priority, other than such as already obtained under the then-existing laws, was by this act given to garnishment liens. Judge Russell, in Mutual Reserve Life Ins. Co. v. Fowler, 2 Ga. App. 537 (59 S. E. 469), had this to say with reference to the act of 1901, supra: “As a matter of common knowledge it was frequently true that before the passage of the amending act of 1901 creditors defeated the process of garnishment and rendered it inoperative, or attempted to do so, by making advance payments to their employees or by accepting orders given by defendants in garnishment after the service of the summons of garnishment and before their answers. This was the evil that the legislature sought to reach and uproot, and this appears from the reference to these devices in the act. The remedy proposed was the act of 1901, which was designed to thwart the subterfuges theretofore employed to evade the collection of debts due to defendants in garnishment by garnishees. Considering the caption and the first section, all of the parts, together, it is plainly to be seen that this was the sole purpose of the act.” See also Singer Sewing Machine Co. v. Southern Grocery Co., 2 Ga. App. 545, 549 (59 S. E. 473). To the same effect is Judge Cobb’s observation upon the scope and intent of this act in Odum v. Macon & Birmingham Railway, 118 Ga. 793 (45 S. E. 619), where he said: “The title indicates that the purpose of the act is to make subject to the lien of the garnishment all the indebtedness of the garnishee accruing after the date of the service of the summons; and this purpose is also fully indicated in the first paragraph of the first section.” This act therefore, properly construed, as evidenced by the observations upon it by both Judge Russell and Judge Cobb, in no wise affected' or changed the then-existing rule, laid down by the Supreme Court of this State in Garrard v. Moffett, supra, and other authorities cited, construing section 5390 of the Civil Code of 1910, whereby the lien of a garnishing creditor on a fund caught by his garnishment was inferior to the lien upon the fund of a judgment of an older date. In so far as the decision in General Motors v. Bank of Valdosta, supra, in which the writer concurred, holds that under the authority of the act of 1901, supra, or for any other reason, the subsequent garnishing creditor’s lien on the fund is superior to that of the older common-law judgment, it is unsound and should not be followed, and therefore is overruled.

We regret that we must reverse a judgment which was based upon one of our own decisions; but since we must correct our own errors, it follows that we must reverse any judgment based thereon.

The judgments in favor of Braddy and Bloodworth, trading, etc., against the defendant in the main suits, and which were the bases of the judgments in behalf of these plaintiffs against the fund, having been rendered upon verdicts obtained at the same term of court, are of equal dignity and share in the distribution of the fund caught by the garnishments. Civil Code (1910), § 5944. The service on the garnishee of the Braddy garnishment at a date prior to the service of the Bloodworth garnishment gives no priority to Braddy’s garnishment lien over that of Bloodworth’s on the fund.

As between different plaintiffs who catch the same fund by summonses of garnishment, the plaintiff whose summons of garnishment is first served upon the common garnishee is the moving creditor. We therefore conclude that the judge of the municipal court of Macon was correct in taxing the expenses of the suit of the moving creditor, J. M. Braddy, including the amount for attorney’s-fees, against the fund in court, namely the $38.79, representing the amount caught both upon the garnishment instituted by Braddy and upon the garnishment instituted by Bloodworth, trading, etc. Civil Code (1910), § 5290; Whaley v. Cunningham, 41 Ga. 320; Carr v. Benedict, 48 Ga. 431; Baxter v. Bates, 69 Ga. 587. We conclude also that the judge of the municipal court did not err in awarding a sufficient amount of the remaining fund to the satisfaction of the older judgment of O. C. Herndon, trading, etc., for $6 principal and court costs, and in awarding the remainder pro rata to the judgments of Braddy and of Bloodworth, trading, etc.

The judge of the superior court erred in sustaining the certiorari.

Judgment reversed.

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


text:
    18929.
    PERRY v. GRIFFIN et al.

      Decided January 22, 1929.

      B. L. Milling, Aldine Chambers, for plaintiff.

      Bryan & Middlebrooks, W. Colquitt Carter, for defendants.
   Jenkins, P. J.

1. The motion to dismiss the bill of exceptions must be overruled, since the judgment of the trial court sustaining the demurrer did, by its terms, dismiss the petition if not amended to meet the demurrer within fifteen days, and the time thus allowed had expired without such amendment, before the bill of exceptions was sued out. Georgia Railway & Power Co. v. Kelly, 150 Ga. 698, 699 (105 S. E. 300). The case differs from those decided by this court in Massengale v. Colonial Hill Co., 34 Ga. App. 807, 809 (131 S. E. 299), and Insurance Company of North America v. Folds, 35 Ga. App. 720 (1) (135 S. E. 107), since in those cases the time allowed for amendment had not expired when the bill of exceptions was sued out.

2. A litigant is privileged to waive his contract and sue in tort (Civil Code of 1910, § 4407), except where the neglect of duty complained of, as distinguished from the negligent performance of duty, is specifically provided for by the contract itself. Howard v. Central of Ga. Ry. Co., 9 Ga. App. 617 (1) (71 S. E. 1017); Fain v. Wilkerson, 22 Ga. App. 193 (2) (95 S. E. 752).

3. There is a principle of law which forbids a joint action against two or more persons or corporations for injuries sustained by reason of their independent tortious conduct, but that rule does not have application, even though actual, voluntary,- and intentional concert of action is lacking, if their separate acts of negligence tend naturally and directly to produce a single injury. Jolly v. City of Atlanta, 37 Ga. App. 666 (2) (141 S. E. 223). But an action in tort can not be joined with one in contract. Teem v. Ellijay, 89 Ga. 155 (15 S. E. 33); Houze v. Blackwell, 20 Ga. App. 438, 440 (93 S. E. 16).

4. In the instant case, while the action against the dentist for malpractice admittedly sounds in tort, the action against the corporation sought to be joined in the same suit, based upon its failure in its contractual duty to furnish a skilful practitioner to perform the work, appears, both from the original petition and from the petition as amended, to sound in contract. In the amendment to the petition it is specifically charged that the defendant corporation “failed and neglected to perform its contract made with petitioner,” in that it failed and neglected to procure the services of an experienced practitioner, as it had “contracted to do.” While there is a rule that in the absence of a special demurrer a petition will be construed in favor of the pleader as to the nature of the cause of action declared upon, so as to preserve rather than to defeat his action (Stoddard v. Campbell, 27 Ca. App. 363 (3), 108 S. E. 311), in the instant case, in which the petition as amended was specialty demurred to on the ground that there was a misjoinder of causes of action, and the plaintiff, after having been given fifteen days to amend her petition to meet such objection, refused to do so, the judgment declaring that the petition would stand dismissed upon the plaintiff's failure to amend the suit within the time allowed will not be set aside.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    18932.
    Brown v. Coleman.
    Decided January 22, 1929.
   Bell, J.

1. While it is true that when the relation of landlord and cropper exists the landlord has the title to and the control of the crops until all advances are paid, yet where the cropper has fully executed his contract of labor, including delivery of all the crops to the landlord, and where the cropper’s portion of such crops is sufficient to pay all advances made by the landlord and to leave a remainder of the cropper’s . portion in the hands of the landlord, the cropper is then entitled to demand a settlement and a division of the crops, when the landlord must account to.the cropper for his share or the value thereof. Baker v. Purvis, 14 Ga. App. 718 (82 S. E. 251) ; Jennings v. Lanham, 19 Ga. App. 79 (2) (90 S. E. 1038).

2. In such a ease the right of the cropper may be enforced by a suit upon the contract. While the remedy of a laborer’s lien foreclosure is avail- able, it is not the only remedy which the cropper may adopt. Compare Kimball v. Moody, 97 Ga. 549 (25 S. E. 338) ; Rhodes & Son Furniture Co. v. Freeman, 2 Ga. App. 473 (1) (58 S. E. 696) ; Kirkpatrick Hdwe. Co. v. Hamlet, 20 Ga. App. 719 (4) (93 S. E. 226) ; Smart v. Hill, 29 Ga. App. 400 (1) (116 S. E. 66).

3. The evidence in this case authorized the verdict found in favor of’the plaintiff cropper. There was no merit in any of the special grounds , of the defendant’s motion for a new trial, and it was not error to refuse the motion. Judgment affirmed.

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

Kirklmd & Kirkland, for plaintiff in error.

Price & Spivey, contra.


text:
    18933.
    Green v. Snellville Consolidated School District et al.

    Decided January 22, 1929.

      W. L. Nix, for plaintiff. John I. Kelley, for defendants.
   Jenkins, P. J.

This case is controlled by the decision of the Supreme Court in Orr v. Riley, 160 Ga. 480 (128 S. E. 669), in which the decision of this court in 33 Ga. App. 472 (127 S. E. 236), was reversed. The decision of the Supreme Court held that all contracts by teachers for services in schools of local school districts must be in writing, and made with the county board of education. Accordingly, the court did not err in dismissing, on demurrer, the plaintiff’s petition, based upon an oral contract made with the local board of trustees. The fact that the county board of education may have paid over to the local trustees the local district’s proportion of the county educational funds would not authorize its application to an illegal contract.

Judgment affirmed.

Stephens and Bell, JJ., concur.