text:
    19370.
    HANEY & TINSLEY v. OWENS.

      Decided March 6, 1929.
    Rehearing denied April 9, 1929.

      Henson & Barnett, Peek, Randolph & Wimberly, for plaintiffs.

      J. H. Paschall, P. A. Cantrell, for defendant.
   Luke, J.

Suit on a note was brought by Iianey & Tinsley, a partnership, against H. E. Borders to the October term, 1926, of the justice’s court for the 937th district G. M., of Gordon county; F. T. Powell, N. P. and ex-officio J. P., issuing the summons. On October 1, 1926, a summons of garnishment based on that suit was served on L. P. Owens. On October 16, 1926, judgment was rendered against Borders in the main case, and on June 18, 1927, the said justice rendered a judgment against the garnishee, reciting that the garnishee had failed to answer. The fi. fa. that the said justice issued on said judgment was introduced in evidence, with entry of levy on one Ford truck, the property of the garnishee. To this levy Owens interposed an affidavit of illegality, setting up that he made a complete answer to said summons of garnishment, denying indebtedness, at the November, 1926, term of court; that he had never been served with any notice of traverse of his said answer; and that the plaintiffs procured their judgment against him without traversing his said answer and without giving him any notice. Haney & Tinsley traversed the affidavit of illegality, and on November 19, 1927, G. O. Hightower, J. P. of the 973d district, G. M., sustained the affidavit of illegality. The plaintiffs appealed the case to the superior court, G. O. Hightower, J. P., certifying that he presided in the trial of the case, that he attested and approved the appeal bond, and that all of the accrued costs had been paid. On October 15, 1928, a jury, at the direction of the court, found for the affidavit of illegality and against the traverse. A motion for a new trial, based upon the general grounds and certain special grounds, having been overruled, Haney & Tinsley excepted.

L. P. Owens, the defendant in error, testified in part as follows: “I was served with a summons of garnishment in this case along in the fall of 1926. . . At the first term of the court I went over to Red Bud to court. Squire Powell and Squire Hightower were there, holding court. . . Mr. Powell said that his eyesight was so bad that he wanted Mr. Hightower to take charge of the case. Mr.- Paschall wrote out the answer and I swore to it before Squire Hightower, and handed it to him.” The witness then testified that his answer was complete and timely. He further testified : “I was never served with any traverse on that answer, and never heard of the case until I heard that this fi. fa. had been issued against me.”

G. O. Hightower testified in part as follows: “I am the justice of the peace in Red Bud District. I was at the court at the October or November term, 1926, 1 don’t remember which. . .' Squire Powell was there and he asked me to take charge of a case he had that was filed by Haney & Tinsley against H. E. Borders, L. P. Owens, garnishee. . . Mr. Powell said to me that he couldn’t see well enough and wanted me to take charge. I told him that I would, and he stepped down oil the porch where we were holding court and sat on the steps. Mr. Owens had an answer "to the garnishment which had been served on him read by Mr. Paschall, or Mr. Cantrell, and I swore him to it and he handed it to me. T.his was in Mr. Powell’s presence. All of us were there. This answer stated that Mr. Owens was not due H. E. Borders anything, either at the time it was served, or at the time the answer was made. I have looked among my papers for that paper and can’t find it. There was a lot of confusion out there that day, and I don’t know what became of the paper. Mr. Cantrell came up to my house and we looked for the paper, but could not find it.” On cross-examination the witness testified as follows: “Mr. Powell never did leave, just sat down on the steps. He was right there, and asked me to take hold for him, and the answer was handed to me by Mr. Owens. I think I took the answer and put it in a bundle of papers, the papers in the Jackson & Suggs case, and bound them all up together. In a few days Mr. Suggs came over after the papers, and I handed him the whole bundle. In my opinion the answer is among those papers. I have never looked there. He lives about four miles from me. I think the answer is there, for I gave him the whole bundle.” Mr. Cantrell testified in substance that Hightower and Powell were holding court at a store; that Paschall wrote an answer to the summons of garnishment for Owens, which recited that Owens was not indebted to Borders at the time of the service, nor at any time between the date of the service and the answer; that Owens swore to the answer before Squire Hightower and handed it to him in the presence of Squire Powell; 'and that he made a search through the papers of both Hightower and Powell, but could not find the answer. J. H. Paschall testified: “Squire Powell was present and asked Squire Hightower to take charge of the case on account of his bad eyesight. Hightower took charge of the case, and the answer was handed to him.” R. K. Haney, one of the plaintiffs, testified: “I went to see Squire Powell with Mr. Henson in June of last year to see about this case. I had been informed that it had not been answered. When we got to Squire Powell’s house, he asked his wife to get his docket. She got the docket, and Squire Powell asked Mr. Henson to write the judgment for him as he could not see well. Mr. Henson wrote the judgment, but at the dictation of Squire Powell. Mr. Henson did not mention writing the judgment until Squire-Powell asked him to. He said it had not been answered.”

The first special ground (numbered 4) alleges that the court erred in making the following ruling: “The act of Justice Powell asking Justice Hightower to take charge of the case constituted Justice Hightower his agent to receive and file the said answer to the summons of garnishment, and the said answer is held by the court to have been properly filed in said case.” The evidence on which the foregoing ruling was based has been stated and need not be repeated here. We think that under the facts of the case, both justices being present, and Justice Powell being incapacitated from transacting business, because of his poor eyesight, the above ruling was correct.

Special ground 5 complains of the court’s ruling permitting various witnesses to testify as to the contents of the garnishee’s answer, over the objection that the answer itself was the best evidence of its contents, and that no sufficient foundation was laid to permit such proof by secondary evidence. Mr. F. A. Cantrell, one of the attorneys of record for the defendant in error, testified that he and- Squire Hightower looked through the latter’s papers, and that he, Cantrell, looked through Squire Powell’s papers, and that the garnishee’s answer could not be found. G. O. Hightower also testified that he searched his papers for said answer, but could not find it. True, Hightower testified on cross-examination that he thought he had put said answer in a bundle of papers which he had delivered to a Mr. Suggs, and that he had never looked in that bundle of papers for said answer; but it does not appear that L. P. Owens, or his attorney, or any one else was in any way apprised of Hightower’s suspicion that he had inadvertently delivered the garnishment answer to Suggs, and it could hardly be expected that Owens or his attorney would search a man living four miles from court for court papers. The rule laid down in the early case of Harper v. Scoll, 12 Ga. 125 (4), is the law of Georgia today, and, under it, the court did not abuse its discretion in admitting secondary evidence. The rule mentioned is this: “In order to permit the introduction of secondary evidence of the contents of a lost paper, it is only necessary to establish a reasonable presumption of its loss or destruction; and this presumption is held to be established when the party shows that in a reasonable degree he has exhausted all the sources of information and means of discovery which the nature of the case suggests, and which were accessible to him.” In Florida Coca-Cola Bottling Co. v. Richer, 136 Ga. 411 (71 S. E. 734), it was said: “In order to admit secondary evidence, it must appear that the primary evidence, for some sufficient cause, is inaccessible to the diligence of the party tendering such evidence. The question of diligence is one of sound discretion in the court.” In Brookman v. Rennolds, 148 Ga. 721 (4) (98 S. E. 543), the rule last quoted is amplified by adding the statement that the court’s discretion will not be interfered with unless flagrantly abused. There is no merit in this special ground of the motion for a new trial.

It appears rather unusual that E. T. Powell should have rendered the judgment against the garnishee and Hightower should have tried the illegality case, but this is no concern of ours. It can not be presumed that Hightower did not have jurisdiction (Carrier v. Griffin, 113 Ga. 633, 38 S. E. 946) and besides the plaintiffs recognized his jurisdiction by trying the case before him and appealing from his judgment.

In appears, from the evidence, that the defendant in error made answer in writing to the summons of garnishment at the proper time and place; that the said answer was never traversed; that Owens had no notice of any traverse, in any event; and that some eight months after Owens was served with a summons of garnishment, judgment was taken against him without his having any sort of notice or knowledge that such judgment was being taken.

If a plaintiff in a suit in a justice’s court desires to traverse the answer of the garnishee, “he shall do so when the same is filed; and 'if such traverse is filed, the issue shall be heard at the same term, unless continued for cause.” See Civil Code (1910), § 4755. When the plaintiff in fi. fa. files no exceptions or traverse to the answer of the garnishee, even though such answer be incomplete, the garnishee should be discharged. See Fitzpatrick Co. v. Shepherd, 22 Ga. App. 44 (95 S. E. 530).

The evidence demanded the verdict directed by the court, the general grounds of the motion for a new trial were properly overruled, and for no reason assigned did the court commit error requiring á new trial.

Judgment affirmed.

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


source: Caselaw Access Project

author: BLOOnwoRTH, J.

license: Public Domain

text:
    19371.
    BART v. SCHEIDER.
    Decided March 6, 1929.

      Oliver & Oliver, Mclntire, Walsh & Bernstein, for plaintiff in error.

      Lawrence & Abrahams, contra.
   BLOOnwoRTH, J.

(After stating the foregoing facts.) The assignment of error that the verdict is excessive can not be considered, because it “amounts to no more than an amplification of the general grounds that the verdict is contrary to the evidence, as it does not point out wherein or for what reason the verdict is excessive.” Continental Aid Association v. Hand, 22 Ga. App. 727 (97 S. E. 206) See Callaway v. Atlanta, 6 Ga. App. 355 (2) (64 S. E. 1105). In the case just cited this court held that “assignments of error must be specific whether contained in a bill of exceptions or in a petition for certiorari.” See section 5199 of the Civil Code of 1910. Moreover, “The excess in the amount of the original verdict for damages in this case did not necessarily indicate that it was induced by bias or prejudice; and it appearing that the plaintiff voluntarily wrote off enough of the amount to bring it within the measure of damages proved, the court did not err in refusing to grant a new trial because of the excessive verdict.” Bugg v. Harper, 36 Ga. App. 39 (135 S. E. 109).

The amendment to the motion for a new trial, ground A , is as follows: “that the court erred in charging the jury as follows: ‘I charge you that if the defendant violated either one or both of these ordinances, and the evidence which you believe has disclosed that fact to you, he would be guilty of negligence under the law, and the law which places a liability upon him for such negligence, provided, however, that by the use of ordinary care and diligence, the plaintiff could not have avoided the injury to himself.’” This is alleged to be error “fox the reason that the negligence of the son was an issue and not the negligence of the plaintiff himself.” Practically the same- error is alleged in special grounds C, D, and E. The use of the word “plaintiff” instead of the words “plaintiff’s son” was evidently a mere lapse of the tongue; and mere inaccuracies of expression or slight errors which are not likely to obscure the meaning of the court or mislead the jury will not authorize this court to set aside a verdict where the charge is otherwise correct. In view of the allegations of the petition, the answer, the evidence, and the entire charge, we do not think the jury could have been misled by this slight lapse of the tongue. Louisville & Nashville Railroad Co. v. Culpepper, 142 Ga. 275 (2), 276 (82 S. E. 659), and cit.; O’Bell v. State, 120 Ga. 153 (2) (47 S. E. 577); Central of Ga. Ry. Co. v. Hartley, 25 Ga. App. 112 (8) (103 S. E. 259); Dawson Pecan Co. v. Montezuma Fertilizer Co., 19 Ga. App. 44 (11) (90 S. E. 984).

In instructing the jury upon the impeachment of witnesses the judge gave in charge section 5880 and section 5881 of the Civil Code. The court is alleged to have erred in instructing the jury that “where a witness is not impeached except by disproving the truth of his evidence or by testimony tending to disprove it, such witness can not be supported by proof of his general good character.”

In so far as section 5880 is concerned, this criticism is not applicable. Sections 5880 and 5881, as given in charge to the jury, were separated by a period, and each was given in its entirety. Correctly construing the charge, the words, “when a witness is thus impeached he can be sustained by proof of general good character, the effect of same to be determined by the jury,” are a part of section 5881, and'relate to that section only. The charge as given does not qualify section 5880. Even should we grant that this part of the charge could be construed as applying to section 5880, the charge would be harmless, as the jury could not' have been misled thereby, for the reason that there was no evidence introduced or offered to sustain any witness by proof of good character.

Nor was there error in reading to the jury all of section 5881. As is said above, the judge is alleged to have erred in giving in charge the last clause of section 5881. The reading of this clause to the jury is specifically alleged to be error because there was no evidence of the good character of the witness whose testimony was attached, and it is insisted that “in the absence of good character such charge was erroneous.” On the trial there was no attempt to establish the credibility of any witness by proof of good character. In Helms v. State, 136 Ga. 803 (72 S. E. 247), Presiding Justice Evans said: The judge “read the entire section of the Code [Penal Code of 1910, § 1052; Civil Code, §5881], the last sentence of which is as follows: ‘When thus impeached he may be sustained by proof of general good character, the effect of the evidence to be determined by the jury.’ Error is assigned upon the reading of this code section in its entirety because there was no attempt to sustain the witness by proof of general good character. We do not think this is sufficient ground for new trial. The State did not attempt to establish the credibility of the witnesses by proof of good character, and the reading of the entire code section, under the facts of this case, is not reversible error. Kelley v. State, 118 Ga., 329 (45 S. E. 413).” The words of Justice Evans are applicable here. See McCommons-Thompson-Boswell Co. v. White, 33 Ga. App. 22 (4) (125 S. E. 76).

The charge is further alleged to be error because the judge instructed the jury as follows: “I charge you that if a witness has been successfully impeached as to a matter material, that his testimony should be disregarded, unless it is corroborated, in whole or in part, by other testimony, or other circumstances in the case.” Under the facts of the case and in the light of the remainder of the charge, these instructions are not cause for a new trial. Immediately preceding the excerpt just quoted the jury had been instructed as follows: “I charge you that the jury must determine the weight of the evidence and the credibility to be given to testimony, including whether or not impeachment, if it has been attempted, has been successful.” Citing Powell v. State, 101 Ga. 9 (5), 19 (29 S. E. 309; 65 Am. St. R. 277), and Hamilton v. State, 143 Ga. 265 (4) (84 S. E. 583), the Supreme Court, in Landers v. State, 149 Ga. 482 (100 S. E. 569), held that the following charge was not error: “When a witness has been successfully impeached by any of the legal methods, that is, where his unworthiness of credit ds absolutely established in the minds of the jury, he ought not to be believed, and it is the duty of the jury to disregard his entire testimony, unless it is corroborated, in which case you may believe the witness; it being, as a matter of course, always for the jury to determine whether a witness has been in fact so impeached.” In Harris v. State, 1 Ga. App. 138 (57 S. E. 938), Chief Judge Hill said: “If a witness is successfully impeached, it is the duty of the jury to discard the testimony of that witness altogether, unless corroborated in material particulars by the other facts and circumstances of the case. The foregoing charge is assigned as error for the reason that ‘ if a witness has been successfully impeached, the jury ought to disregard and discard his evidence altogether.’ This charge of the court is substantially in the language of the Civil Code, § 5295; and similar charges have been approved by many decisions of the Supreme Court.” See also Powell v. State, 122 Ga. 571 (50 S. E. 369); Grant v. State, 118 Ga. 806 (45 S. E. 603); Holston v. Southern Ry. Co., 116 Ga. 661, near bottom of page (43 S. E. 29); Huff v. State, 104 Ga. 523 (2) (30 S. E. 808); Williams v. State, 69 Ga. 14 (28); Rice v. Eatonton, 15 Ga. App. 509 (83 S. E. 868); Brown v. State, 10 Ga. App. 50 (2) (72 S. E. 537).

The last ground of the motion alleges that the court, after having charged the jury as to the measure of damages, and after the jury were instructed that “if you arrive at a gross sum which would be fairly compensatory you must reduce the gross amount to its present cash value,” erred in not charging the jury as to how they should arrive at the present cash value. There was no request for further instructions in reference to this matter. Under the rulings of this court and of the Supreme Court, there was no error in not instructing the jury how they should arrive at the present cash value. In Louisville & Nashville Railroad Co. v. Trout, 141 Ga. 121 (80 S. E. 622), the second headnote is as follows: “An omission to instruct the jury on the mathematical process of reducing a given sum payable in the future to its present worth, in the absence of an appropriate request, is not ground for a new trial.” See Hudson v. Carton, 37 Ga. App. 634 (3) (141 S. E. 222); Standard Oil Co. v. Reagan, 15 Ga. App. 572 (5, 6) (84 S. E. 69). It is further urged in this ground that “the jury was not informed as to what interest rate should be taken into consideration in reducing said gross amount to its' present cash value.” The judge is not required in his charge to name the rate of interest the jury should use in reducing a verdict for damages to its present cash value. The jury can fix any rate that under the facts and circumstances they may deem reasonable and right. W. & A. Railroad Co. v. Hughes, 37 Ga. App. 773 (10) (142 S. E. 185); W. & A. Railroad v. Townsend, 36 Ga. App. 75 (7) (135 S. E. 439); Brown v. Wilkes, 20 Ga. App. 92 (4) (92 S. E. 553).

Judgment affirmed.

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


author: Broyles, C. J.

text:
    19372.
    Cone v. Buckner. Cone v. Slack.
    19373.
    Decided March 6, 1929.
   Broyles, C. J.

In each of these cases the bill of exceptions was certified by the judge on November 5, 1928, and filed in the office of the clerk of the trial court on November 21, 1928. “It appearing from the official entry made upon the bill of exceptions in this case that it was not filed in the office of the clerk of the trial court within fifteen days from the date of the judge’s certificate, the writ of error must be dismissed.” Swafford v. Swafford, 125 Ga. 386 (2) (53 S. E. 959); Johnson v. Atlanta, 9 Ga. App. 302 (70 S. E. 1120).

Writs of error dismissed.

Luke and Bloodworth, JJ., concur.

Peels, Randolph & Wimberly, McClelland,, Savage & Crawford, Morris Maclss, for plaintiff in error.

Branch <£ Howard, J. JS. Van Vdlhenberg Jr., contra.


text:
    19375.
    Tate v. The State.
    Decided March 6, 1929.
   Broyles, C. J.

The evidence tending to connect the accused with the offense of manufacturing whisky, or with the offense of attempting to make it, was wholly circumstantial and was not sufficient to exclude every reasonable hypothesis save that of his guilt. The refusal of the court to 'grant a new trial was error.

Judgment reversed.

Luke and Bloodworth, JJ., concur.

John B. Guerry, for plaintiff in error.

. Jule Felton, solicitor-general, Hollis Fort, solicitor-general, contra.


text:
    19378, 19379.
    Swint v. The State (two cases).
    Decided March 6, 1929.

      Willis Smith, Smith & Millican, A. B. Tcuylor, for plaintiff in error.

      William Y. Atkinson, solicitor-general, contra.
   Broyles, C. J.

1. The defendant having been convicted of unlawfully shooting at another, the failure of the court to instruct the jury upon the law of voluntary manslaughter is not ground for a new trial.

2. “It is not matter of right for the accused to make a second statement to the court and jury because the State has introduced additional evidence which strengthens .the case against him.” Boston v. State, 94 Ga. 590 (2) (21 S. E. 603) ; Knox v. State, 112 Ga. 373 (37 S. E. 416).

(a) “Whether he should be allowed to supplement his first statement with another is discretionary with the trial court.” Williams v. State, 138 Ga. 825 (76 S. E. 347), and cit. In the instant case the refusal of the court to allow the accused to make a second statement was not an abuse of its discretion.

3. The court did not err in overruling those grounds of the motion for a new trial based upon alleged newly discovered evidence.

(a) Such evidence was largely impeaching in its character.

(&) The supporting affidavits of the witnesses failed to give the names of their associates. Ivey v. State, 154 Ga. 63 (6) (113 S. E. 175).

4. The evidence in each case authorized the verdict.

Judgments affirmed.

Luke and Bloodworth, JJ., concur.


text:
    19381.
    Elrod v. Continental Casualty Co.
    Decided March 6, 1929.

      William B. & Gordon Mann, for plaintifE.

      Maddox, Maddox & Mitchell, for defendant.
   Broyles, C. J.

1. The assignment of error in the bill of exceptions upon the ruling out of certain testimony can not be considered by this court, since the testimony excluded is set out so vaguely and obscurely as not to be thoroughly understandable. In the state of the record no question is raised by this assignment of error.

2. Under the evidence adduced by the plaintiff a nonsuit was properly awarded. Judgment affirmed.

Luke and Bloodworth, JJ., concur.


author: Bloodworth, J.

text:
    19383.
    HOOD v. COOLEDGE.
    Decided March 6, 1929.

      T. J. Ripley, W. M. Bailey, for plaintiff in error.

      William J. Davis Jr., contra.
   Bloodworth, J.

Hood sued Cooledge in the superior court of Eulton county for $58.89, alleged to be a balance due on an open account; the contention of Hood being (as disclosed in a later suit) tha.t Cooledge employed him to superintend a plumbing job and agreed to pay him “twenty-five per cent, on all fixtures and plumbing work,” and that there remained a balance of $58.89, due on said contract. Thereafter, and before the trial of Hood’s case in the superior court, Cooledge brought suit against Hood in the municipal court of Atlanta, alleging that Hood was due him $100 as overpayment on the same transaction ;'Cooledge’s contention being that his contract with Hood was to pay Hood twenty per cent, of the labor and ten per cent, of the fixtures on said plumbing job, and that he had overpaid Hood in the sum of $100, which Cooledge sought to recover. To the suit in the municipal court Hood filed a plea in abatement, setting up that there was a “suit pending between the same parties over the same subject-matter, in a court of competent jurisdiction,” and prayed that the case in the municipal court abate until the case pending in the superior court be tried or disposed of. The trial judge in the municipal court “denied” the plea in abatement, and upon the trial the jury rendered a verdict in favor of Cooledge. A motion for a new trial was overruled. Hood appealed the case to the appellate division of the municipal court, and the appellate division affirmed the judgment of the trial judge. Hood then carried the case to the superior court by certiorari, and that court overruled the certiorari. Hood then brought the case to this court, assigning error on the overruling of his certiorari.

The certiorari alleges various errors, but under our view of the case it will be necessary only to pass on the issue raised by the plea in abatement. It is not contended by Cooledge that Hood’s suit in the superior court “is so defective that no recovery can be possibly had” thereon. This being true, section 5678 of the Civil Code of 1910, providing that '“the pendency of a former suit for the same cause of action, between the same parties, in the same- or any other court that has jurisdiction, shall be a good cause of abatement,” is controlling. The cases were between the same parties. They arose out of the same transaction — the same contract, and the evidence all pertained to that contract. According to the evidence, Cooledge alleged that he had overpaid on the same contract on which Hood alleged there was a balance due. There was no difference between the parties as to how much had been paid by Cooledge. The difference between them was how much was due Hood for superintending this plumbing job. Cooledge claimed an overpayment for a particular service. Hood claimed a balance due him for the same service. Cooledge claimed he was to pay Hood 20% of labor and 10% of material. Hood claimed that Cooledge was to pay him 25% on labor and material. Both parties based their claim on the same contract. It is undisputed that Hood’s case in the superior court was filed first, and that the superior court was a court of competent jurisdiction. All the issues that were or could have been tried in the municipal court could have been tried in the superior court. Cooledge could have gone into the superior court and said, “I owe Hood nothing for superintending this plumbing job, but, on the contrary, I have overpaid him $100 for said service and he is indebted to me in said sum.” Can the courts say that even though Hood was diligent in filing his suit first in a court of competent jurisdiction, and even though Hood would have to dismiss his suit in the superior court and pay the cost in order to assert his claim in the municipal court, still he must do so in order that the case may be tried in the court of Cooledge’s choosing? We think not.

While usually and naturally, when a plea in abatement is invoked on the ground of lis pendens, the same party is plaintiff in both cases as a result of instituting twc suits for the same cause of action, we have found no law and can ascribe no reason why the same party need necessarily be the plaintiff in both cases, in order to make the plea sustainable. The statute does not specify the same plaintiff or the same defendant, but does specify “the same parties.”

The statute quoted above as being controlling in this ease seems to have been the law of our State since 1863. In Wilson v. Atlanta, K. & N. Ry. Co., 115 Ga. 174 (41 S. E. 699), the Supreme Court says: “A statement of the Connecticut rule, substantially the same as that set forth in the language just quoted, is embraced in our Civil Code, § 5094 [§ 5678 of the Code of 1910] which reads as follows: ‘A former recovery, or the pendency of a former suit for the same cause of action, between the same parties, in the same or any other court that has jurisdiction, shall be a good cause of abatement; but if the first action is so defective that no recovery can be possibly had, the pendency of a former suit will not abate the action/ As this language is identical with that appearing in the Code of 1863, § 3407, it would seem that the codifiers intended to adopt the Connecticut rule.” In Eppinger v. Seagraves, 141 Ga. 639 (2) (81 S. E. 1035), it was held: “Both actions sought recovery of land and mesne profits, and were between the same parties. The judge was authorized to find that they referred to the same land. While there was some difference in the character of the title alleged, and in the former suit there was a prayer that title be decreed to be in the plaintiff, this was not a substantial variance, the" former suit being sufficiently broad to comprehend all of the relief sought in the latter. Under these circumstances the judge properly sustained the plea in abatement.” It will be noted that in that case the actions “referred to the same land.” In the instant case the actions referred to the same contract. In Heath v. Bales, 70 Ga. 634, the Supreme Court said: “The pendency of a former suit for the same cause of action, between the same parties, in the same or any other court that has jurisdiction, is a good cause of abatement; but if the first action is so defective that no recovery can possibly be had, the pendency of a former suit will not abate the action. Code, 3476. See in connection lb., see. 2894, in which a suitor is put to his election where two actions are commenced and prosecuted simultaneously for the same cause; but if commenced at different times, the pendency of the former is a good defense to the latter. These rules are applicable also to torts, and the only exception which the code makes to them is in cases of attachments pendente lite, and in cases by informers, wherein the first filed in office for the same cause of action has precedence, and the latter abates.” In the ease of Singer v. Scott, 44 Ga. 661 (2), the Supreme Court said: “The first objection as well as the entry on the declaration by the clerk, which is an official entry, required by law, and is, therefore, evidence, shows that the case called and tried was brought when there was another suit for the same matter pending in the same court, between the same parties. . . In such a case the Code, § 2843, provides that the pendency of the first suit may be pleaded in abatement of the second. The record shows that this plea was filed. It would be making this provision of the code a nullity to permit the plea to be evaded by dismissing the first suit after the plea was filed. It would be in effect to give the plaintiff the right to elect, when the statute declares that, though he may do this if the suits be brought simultaneously, the plea of former suit pending is a good plea to the latter if the two be brought at different times. Our Code fixes the period at which a suit is pending, to wit: When the writ is filed in office.” The reason for the rule as laid down in the Civil Code, § 5678, is obvious. Since Hood filed his suit in the superior court first, and since Cooledge could have asserted his claim in that court, Hood should not be vexed, oppressed, and put to the unnecessary expense of dismissing his suit and paying the cost in order to try the same issues in a court of Cooledge’s selection. In the case of Rogers v. Hoskins, 15 Ga. 270 (2), the Supreme Court lays down the rule as stated in our Code, § 5678; and on page 274 Lumpkin, J., speaking for the court, said: “But what is the reason for the rule to which I have adverted, and to be found in all the elementary works on pleading — that the pending of a prior suit between the same parties, and for the same cause of action, is good cause of abatement? It is because the second suit is unnecessary, and consequently oppressive.” And in Maher v. State, 53 Ga. 448, 451 (21 Am. R. 269), the Supreme Court, speaking of a prior prosecution, said: “The judgment is put upon the principle that where there are two courts with concurrent jurisdiction, the one first exercising it acquires control of the case to the exclusion of the other.”

The controlling issue in each of these eases was the same, viz., whether Cooledge agreed to pay Hood 25% on labor and fixtures, or whether he agreed to pay him 20% on labor and 10% on fixtures. The same evidence would be admissible in each case should the defending party plead a set-off or recoupment. The issue could have been thrashed out in the first suit filed in the superior court. The policy of the law is to keep down litigation and avoid a multiplicity of suits, and where two courts have concurrent jurisdiction the rule is for that court to have precedence which first obtains jurisdiction. Should the judgment rendered in favor of Cooledge in the municipal court be allowed to stand, Cooledge could plead it in bar to Hood’s suit in the superior court. Section 4335 of the Civil Code of 1910 declares that “An adjudication of the same subject-matter in issue in a former suit between the same parties, by a court of competent jurisdiction, should be an end of litigation.” In Hartell v. Searcy, 32 Ga. 190, the court held that “A party is not entitled to the judgment of two separate and independent tribunals, upon the same subject-matter, and a judgment rendered in one will be a bar to a second hearing in the other; and, upon proof of the first judgment, the case pending before the other tribunal will be dismissed.” In the case of Miller v. Franklin, 14 Ga. App. 180 (2) (80 S. E. 549), this court quoted section 4336 of the Civil Code, as follows: “A judgment of a court of competent jurisdiction is conclusive between the same parties . . as to all matters put in issue, or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered.” See also Acree v. Bandy, 20 Ga. App. 135 (92 S. E. 765); Wade v. Hurst, 143 Ga. 29 (84 S.E. 65).

The trial judge erred in denying the plea in abatement; all proceedings thereafter were nugatory; and the judge of the superior court erred in overruling the certiorari.

Judgment reversed.

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


author: Beoyles, O. J.

text:
    19384.
    Sims v. Jumbo Sales and Service Company.
    Decided March 6, 1929.
   Beoyles, O. J.

Under the facts of tlie case as disclosed by the record, the trial judge in the municipal court of Atlanta did not err in directing a verdict for the defendant, or in refusing to grant a new trial; the appellate division of the court did not err in affirming the judgment of the trial judge, and the judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

Luhe cmd Bloodworth, JJ., concur.

John I. Kelley, for plaintiff. B. K. Hill, for defendant.


author: Bloodworti-i, J.

text:
    19386.
    WASHINGTON v. UNITED STATES FIDELITY & GUARANTY CO. et al.

    Decided March 6, 1929.

      Ulmer & Dowell, for plaintiff.

      Lawrence & Abrahams, for defendants.
   Bloodworti-i, J.

Kent Green was killed in an accident arising out of and in consequence of his employment by the Southern States Phosphate & Fertilizer Company. Compensation insurance was carried by said employer with the United States Fidelity & Guaranty Company. A claim was filed with the industrial commission of Georgia on behalf of Amelia Washington, who was over fourteen years of age, but who was alleged to be physically and mentally incapacitated from earning a livelihood. The first hearing was before Commissioner Norman, who refused compensation to the applicant, holding that '“Amelia Washington was not a dependent and therefore not entitled to compensation.” The full commission sustained the decision of Commissioner Norman, but on appeal to the superior court of Chatham county Judge Meldrim, with the statement that “Grant that the claimant was not wholly dependent on the deceased, she was beyond question partially dependent upon him. In such cases she shall receive proportionate compensation,” recommitted the case to the industrial commission “for further hearing on the question of the amount to be paid the claimant under the law as provided in the workmen’s compensation act codified in 11 Park’s Code Supp. 1922, § 3154 (11) (e).” Ga. L. 1922, p. 191, § 38 (c). The case then came to this court. For the opinion then rendered see 37 Ga. App. 140 (139 S. E. 359). The second hearing was before Commissioner Stanley, and the evidence before him was practically the same as on the first hearing, so far as the main issues, are concerned; and is so nearly the same as to make the previous ruling of this court, that “the undisputed evidence clearly indicates a state of partial dependency by the claimant upon the deceased employee, her father,” and that “the finding of the industrial commission against total dependency can not be disturbed,” res adjudicata. IJpon the hearing before Commissioner Stanley he held that Kent Green, the father of the applicant, “would have been entitled to compensation at the rate of $8.25 per week, and a total dependent would be entitled to compensation at the rate of $7.01 per week. A partial dependent having received 29% of the deceased’s wages is entitled to 29% of what a total dependent would receive,” and he awarded to the applicant “$1.58 per week, beginning March 18th, 1926, and continuing for not more than three hundred weeks.” The full commission affirmed the finding of Commissioner Stanley. On appeal to the superior court of Chatham county from this finding, Judge Meldrim affirmed the award of the industrial commission. The issues in this case are clearly of fact, and the finding of the commission was approved by the judge of the superior court. Each issue has evidence to support it, and “the findings of the industrial commission on questions of fact, if supported by any evidence, are conclusive.” American Mutual Liability Insurance Co. v. Adams, 32 Ga. App. 759, 760 (124 S. E. 801); U. 8. Fidelity & Guaranty Co. v. Christian, 35 Ga. App. 326 (3) (133 S. E. 639); Ocean Accident & Guaranty Gorp. v. Council, 35 Ga. App. 632 (2) (134 S. E. 331); Maryland Casualty Co. v. England, 160 Ga. 810, 813 (129 S. E. 75).

Judgment affirmed.

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


author: Broyles, O. J.

text:
    19394.
    Elrod v. The State.
    Decided March 6, 1929.
   Broyles, O. J.

The evidence was insufficient to authorize the defendant’s conviction of the offense of possessing intoxicating liquor, and the court erred in refusing to grant a new trial.

Judgment reversed.

Luke and Bloodworth, JJ., concur.

E. E. Anderson, for plaintiff in error.

John C. Mitchell, solicitor-general, contra.


author: Beotx.es, C. J.

text:
    19402.
    Slaton et al. v. The State.
    Decided March 6, 1929.

      E. A. Allen, for plaintiffs in error.

      Carlton W. Binns, solicitor, John A. Boylcin, solicitor-general, J. W. LeCraw, contra.
   Beotx.es, C. J.

The evidence, although circumstantial, was sufficient to exclude every reasonable hypothesis save that of the defendant’s guilt of possessing intoxicating liquor, and the overruling of the certiorari was not error for any reason assigned.

Judgment affirmed.

Lithe and Bloodworth, JJ., concur.


text:
    19412.
    Ison v. The State.
    Decided March 6, 1929.

      E. M. Smith, for plaintiff in error.

      Frank B. Willingham, solicitor-general, contra.
   Broyles, C. J.

1. In a misdemeanor case the defendant may be convicted on the testimony of a witness for the State, although proof of the witness’s general bad character has been introduced to impeach him, and no evidence has been offered to sustain his character, and no corroborating circumstance has been proved. It is entirely for the jury to determine whether .the witness has been impeached or whether his evidence is credible. Rice v. Eatonton, 15 Ga. App. 505 (4) (83 S. E. 868).

2. Under the above-stated ruling and the facts of the instant case the defendant’s conviction was authorized, and the refusal to grant a new trial was not error.

Judgment affirmed.

Luke and Bloodworih, JJ., concur.


text:
    19428.
    ALDRIDGE v. THE STATE.
    Decided March 6, 1929.

      J. B. Moore, for plaintiff in error.

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

Claude Aldridge was convicted of perjury, and he 'assigns error on the overruling of his motion for a new trial. In his bill of exceptions he does not assign error on the overruling of his demurrer to the indictment or on the exceptions pendente lite thereto;' and therefore this ruling can not be considered by this court.

The charge against the defendant is, in substance, that he swore before the grand jury of Appling county that Alvin Martin shot a pistol on a public highway, and he saw him do it; and on the trial of Alvin Martin in the city court of Baxley, he swore that he did not see Martin with a pistol or gun and did not see him discharge it. The indictment was in two counts, the first charging that the defendant swore falsely before the grand jury, and the second charging that he swore falsely on the trial in the city court. The State elected to try the defendant on the first count.

The gravamen of this case, the vital and controlling issue, is: Does the evidence show that there was such a lawful oath administered to the defendant as could be the basis of a prosecution for perjury? On the trial of the defendant, J. A. Boss swore: “I was foreman of the grand jury . . and I was presiding when a case came up to be investigated against Alvin Martin, . . and Claude Aldridge was sworn as a witness. I swore him by having him hold up his hand, and the question I asked him was, The evidence you shall give in the case against Alvin Martin shall be the truth, the whole truth, and nothing but the truth, so help you Godd At the time I administered that oath we had an indictment before us on the table against Alvin Martin, charging him with shooting on the highway, and Claude Aldridge gave testimony after being sworn.” The State then introduced evidence to show what the defendant Aldridge swore before the grand'jury, and to show that it was false.

Section 835 of the Penal Code of 1910 provides that “The foreman of each grand jury may administer the oath prescribed by law to all witnesses required to testify before such grand jury,” and section 838 prescribes the following oath: “The evidence you shall give the grand jury on this bill of indictment (or presentment as the case may be — here slate the case) shall be the truth, the whole truth, and nothing but the truth. So help you God.” (Italics ours.) The evidence in the instant case shows that in the oath administered to the defendant by the foreman of the grand jury, there was no mention of “the grand jury,” or of “this bill of indictment,” or of any bill of indictment, or of any “presentment,” and the foreman did not “state the case.” There is nothing to show that the defendant knew what was in the indictment against Alvin Martin lying on the table^ or that the defendant knew that an indictment against Alvin Martin was lying on the table. The oath that the defendant took gave him no notice of what Alvin Martin was charged with. The law says that the one administering the oath should “state the case.”

“Penal statutes must be strictly construed.” Brandon v. State, 37 Ga. App. 495 (141 S. E. 63). In the case of Ashburn v. State, 15 Ga. 246, the first headnote is as follows: “In all cases of presentment or of indictment, the only lawful oath which can be administered to witnesses, to be sent before the grand jury, is the following : ‘The evidence which you shall give to the grand jury, on this bill of indictment, (or presentment) as the case may be, (here state the case) shall be the truth, the whole truth §md nothing but the truth, so help you God/” (Italics ours.) And, referring to the oath which was administered to the witness in the Ashburn ease, the Supreme Court, on page 248, said: “It omits to state the proceeding, the presentment or the indictment, in which- the testimony is to be given. With such differences it is not in form or in substance the same oath as the one which the code prescribes; and so is not the oath which the code requires to be administered; and, therefore, is not a lawful oath. The oath should have followed the Code. The oath being unlawful, the statements of the persons examined under it could not amount to evidence. But the presentment and indictment were founded on those statements. They were, therefore, founded on what was not evidence — in other words, were without foundation. They were, therefore, void. Neither perjury nor false swearing can be assigned, unless the oath be a lawful one.” In re Lester, 77 Ga. 143, 147, the Supreme Court, citing the Ashburn case, supra, said: “The grand jury can find no bill or make any presentment, except upon the testimony of witnesses sworn in a particular case, where the party is charged with a specified offense, to speak the truth, the whole truth, and nothing but the. truth.” In the instant case the “particular case” against Alvin Martin was not stated in the oath, nor was the offense “specified.” In Switzer v. State, 7 Ga. App. 7 (65 S. E. 1079), this court held: “The grand jury can not find a bill or make a special presentment except upon the testimony of a witness to whom has been administered the oath substantially as prescribed in section 834 of the Penal Code, in a particular case where the party is charged with a specified offense. In other words, to make the finding legal, the witness must be sworn on a bill or presentment charging a specific offense' against the party.” And on pages 9 and 10 of the opinion, Chief Judge Hill, speaking for the court, said: “In all cases of presentment or of indictment the only oath which can be administered to a witness before the grand jury is as follows: ‘The evidence you shall give the grand jury on this bill of indictment (or presentment as the case may be — here state the case) shall be the truth, the whole truth, and nothing but the truth, so help you God.’ Penal Code, § 834. If the oath of the witnesses sworn before the grand jury be materially different from the above oath prescribed by the statute, the indictment or presentment should be quashed or dismissed. Ashburn v. State, 15 Ga. 246. The grand jury can not find a bill or make a presentment ‘except upon the testimony of witnesses sworn in a particular case, where the party is charged with a specified offense.’ In re Lester, 77 Ga. 143. Unless the oath prescribed by the statute is taken by the witness, his testimony before the grand jury does not amount to evidence, and, if false, iuould not be a basis upon which perjury or false swearing could be assigned, and an indictment or presentment returned on such alleged evidence would be no indictment or presentment, and should be quashed by the court.” (Italics ours.) In Blade v. State, 13 Ga. App. 546 (79 S. E. 173), this court held: “In the first indictment for perjury the State was required to prove that Black was lawfully sworn.” (Italics ours.) Any mere oath is not sufficient to support a prosecution for perjury; it must be a lawful oath. This is further illustrated by the fact that in Hutchins v. State, 8 Ga. App. 409 (69 S. E. 309), this court said a pauper’s affidavit in order to be effective, must be “such an affidavit as would support a prosecution for perjury;” and the strictness of the law is also shown by the statement in the Ashburn case, supra, that “the oath should have followed the code.”

The oath administered to the witness. Aldridge before the grand jury, not mentioning “the grand jury,” or the “bill of indictment,” or any bill of indictment, or “presentment,” and not “stating the case” under investigation against Alvin Martin, was not a lawful oath, and could not properly be the basis of a prosecution for perjury, and the statements made to the grand jury by the witness under such an oath do not constitute evidence.

The indictment having alleged that the defendant Aldridge swore falsely before the grand jury “after a lawful oath had been administered to him,” and the State having failed to prove this material allegation, the verdict is without evidence to support it, and the court erred in overruling the motion for a new trial.

Since there is not likely to be a recurrence of the alleged errors referred to in those special grounds of the motion which are not covered by the foregoing ruling, we do not deem it necessary to pass upon them.

Judgment reversed'.

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


text:
    19429.
    Maryland v. The State.
    Decided March 6, 1929.

      Hugh E. Gombs, for plaintiff in error.

      M. L. Felts, solicitor-general, contra.-
   Broyles, C. J.

1. The admission of evidence as complained of in the motion for a new trial' was not error for any reason assigned.

2. The evidence authorized the charge upon the subject of recent possession of stolen property, and the charge upon the law of confessions.

3. The verdict was supported by the evidence.

Judgment affirmed.

Luke and Bloodworlh, JJ., eoneur.


text:
    19354.
    LUDDEN & BATES SOUTHERN MUSIC HOUSE v. TONEY.
    Decided March 7, 1929.

      Robert B. Williamson, for plaintiff.

      Hoyt H. Whelchel, for defendant.
   Broyles, C. J.

1. “A plea of total failure of consideration to a suit for the contract price of certain articles is mot supported, where the evidence fails to show that the articles are entirely worthless; and in the absence of any data from which the jury could ascertain how much less the goods are worth than the contract price, it is not error for the court to direct a verdict for the plaintiff.” Clegg-Ray Co. v. Indiana Scale & Truck Co., 125 Ga. 558 (54 S. E. 538), and cit.

In the instant case the defendant’s plea of a total failure of consideration was not sustained by the evidence. The defendant’s own testimony showed that the piano in question (the second piano shipped to him by the plaintiff) was retained by him in his home for more than a year, and there is a fair inference from his testimony that the piano, during that time, was used by his wife in giving music lessons to her pupils. Obviously it had some value. There was evidence showing a partial failure of consideration, but no sufficient data was given to enable the jury to calculate and ascertain how much less than the contract price the piano was worth. Therefore, under the above-stated ruling in the Clegg-Ray case, the plaintiff was entitled to the direction of a verdict in its favor for the full amount sued for.

{a) Moreover, the undisputed evidence disclosed that the defendant knew of the defects in the piano when he received it from the plaintiff, and, although making complaints to the plaintiff about the defects, he kept and used the piano in his home for about seventeen months. Under such circumstances the defects in the piano were waived by the defendant, and he will not thereafter be heard to complain. Carolina Portland Cement Co. v. Turpin, 126 Ga. 677, 678 (55 S. E. 925).

2. Under the pleadings and the evidence there was no rescission of the contract of purchase, and the defendant’s plea that he be allowed to recover from the plaintiff the total amount of the monthly installments previously paid by him on the purchase-price of the first piano (which he kept and used for about fifteen months and until he received from the plaintiff another piano in exchange therefor) should have been rejected by the court and jury.

3. From the above-stated rulings it follows that the verdict in favor of the defendant for $170 (the amount of the installment payments made by the defendant), and interest, was contrary to law and tlie evidence, and that the refusal to grant a new trial was error. As these rulings are controlling in the case, the special grounds of the motion for a new trial are not passed upon.

Judgment reversed.

Luke and Bloodworih, JJ., concur.


author: Luke, J.

text:
    19355.
    PITTMAN CONSTRUCTION COMPANY v. ELLIS.
    Decided March 7, 1929.

      John Rogers, for plaintiff in error. J. G. Bennett, contra.
   Luke, J.

C. A. Ellis recovered a verdict against Pittman Construction Company, a corporation, for $328 in an action for breach of contract. The court overruled the defendant’s motion for a new trial and the defendant excepted. .

Briefly stated, the salient allegations of the petition are these: Pittman Construction Company had a contract to construct certain sidewalks in the City of Ilazlehurst, and to use in such construction cement, sand, rock and slag, aggregating approximately one hundred and forty carloads. C. A. Ellis contracted with said company, through its authorized agent, one Malone, to haul all of said paving material from the railroad-cars to the places where the sidewalks were to be laid, “and the defendant agreed to pay petitioner at the rate of ninety cents per hour for the time petitioner should be engaged in such hauling,” said price to be “based on the time of a one-ton Ford truck.” It was further alleged that the plaintiff was to haul earth to raise the sidewalks, and to haul dirt from excavations where the walk was lowered. Petitioner entered upon the performance of the contract on March 28, 1927, and had operated thereunder nine days when the defendant breached the contract by refusing to allow him to proceed further with the work. There was enough hauling to be done under the contract to have engaged a one-ton truck for at least one hundred and forty days. The cost of operating said one-ton truck per ten-hour day would not have exceeded $5. The defendant paid the petitioner for the time he actually hauled, but damaged him in the sum of $560 by breach of said contract. The defendant averred that Malone had no authority to contract for it; denied making the contract; denied breaking it, and denied all liability.

If the contract existed, its breach and damages for such breach were proved. The controlling question is whether or not there was such a contract, and the answer rests upon Malone’s authority to bind the company. On direct examination F. A. Pittman testified: that he was secretary and treasurer of Pittman Construction Company, and had charge of “the direction of the work of constructing the sidewalks of Hazlehurst;” that he “was the officer of the company that looked after the Hazlehurst work;” and that Malone “was the foreman that we hired that week at Hazlehurst to handle the work for us.” C. A. Ellis, plaintiff, testified that Mr. F. A. Pittman referred him to Mr. Malone about the contract, saying, “any contract or agreement you make with Mr. Malone is perfectly all right.” Ellis further swore that he did contract through Malone substantially as alleged in the petition. A part of his testimony was as follows: “We agreed on ninety cents an hour, . . based on the use of a one-ton truck for the first week, and then I was to put on another one.” Hauling was to be done as was necessary. No specified amount was to be hauled per day. On cross-examination F. A. Pittman testified: that Malone was foreman on the job, with authority “to employ such men as we did not send from Atlanta, and hire whatever hauling we did not do ourselves, subject to the approval of the Atlanta office, . . could hire a man or a truck by the hour or by the day, . . but could not make a contract;” that he did not tell Ellis that any contract he might make with Malone would be satisfactory; and that neither witness nor the Construction Company ever ratified the contract made by Malone with Ellis.

There would be no profit in setting out all the evidence in the record. Suffice it to say that the jury had the right to conclude, from the testimony of Pittman and Ellis, that the alleged contract was actually made, and that it was binding upon the Pittman Company, and, from the other testimony, that it was breached, and Ellis damaged in the amount of the verdict. The court properly overruled the general grounds of the motion for a new trial. See, in this connection, Bass Co. v. Granite City Mfg. Co., 119 Ga. 124 (45 S. E. 980); Nunez Gin & Warehouse Co. v. Moore, 10 Ga. App. 350 (73 S. E. 432); Germain Co. v. Bank of Camden County, 14 Ga. App. 93, 94 (80 S. E. 302).

In special ground 1 it is contended that the court erred in permitting the plaintiff to testify that the agreement was that he was to put on another truck at the end of the week. The purport of the contract was that Ellis was to do the necessary hauling, and we do not see that the defendant was injured in any way by the testimony referred to.

Special ground 2 is that the plaintiff was allowed to testify how he prepared a truck-body for hauling, over the objection that what was done to prepare for carrying out the alleged contract threw no light on the questions at issue. We fail to see how this evidence was relevant, but we are quite sure that it was not sufficiently harmful to warrant a new trial.

Special ground 3 is that the suit was on a contract for the use of one truck, and that the court erred in allowing Ellis to testify that he was to be paid “ninety cents per hour for each truck, one truck the first week, and after that two one-ton trucks,” over the objection “that the suit was on a contract for the use of one-ton truck, as shown by the pleadings.” It appears from the pleadings that “the price ninety cents per hour was based on the time of a one-ton truck,” not that only one truck was to be used. There is no merit in this exception.

Special ground 4 complains of the admission of certain evidence because “there was no evidence showing agency that would authorize Malone to make a contract for Pittman Company.” There was evidence to' show such agency, as has ’been pointed out in our discussion of the general grounds, and.there is no merit in this exception.

There is no merit in special ground 5, complaining of the court’s refusal to direct a verdict for the defendant, because the evidence failed to show any contract between the parties. Our conclusion that the general grounds were properly overruled controls this ground. Moreover, a refusal to direct a verdict is never error.

Special ground 6 complains of the court’s refusal to grant a mistrial, because, in the course of argument of counsel upon a legal proposition, the court remarked that if a corporation held out a man as agent and was not bound by that agent’s contract, the public could be defrauded. We can not tell from the exception what particular contention of counsel elicited the court’s statement, or whether counsel’s argument warranted it. As a proposition of law the statement is not unsound, and we hold that it did not require the court to declare a mistrial of the case.

Special ground 7 complains of the failure of the court, without request so to do, to charge as follows: “Plaintiff bases his right to recover upon an express contract which is entire and indivisible, and he can not recover unless he. has performed all of his obligations under the contract.” In the light of the charge as a whole, there is no merit in this ground.

Special ground 8 complains that the court erred in failing to instruct the jury, without any request so to do, that it was the duty of the plaintiff to try to lessen his damage “by the legitimate use of said truck and driver.” The burden was upon the defendant to plead and prove any diminution of damages (Mimms v. Betts Co., 9 Ga. App. 718/72 S. E. 271); and the defendant having failed to do so, it was not error for the court to fail to charge that principle of law. There is no merit in this ground because of its averments that the excerpt from the charge referred to therein set out a different contract from that declared upon, or because it was tantamount to directing a verdict for the plaintiff.

Special ground 9 complains that the court erred in charging the jury that if Pittman was the only authorized agent of the company to do the work referred to in the pleadings, and Ellis approached him for the job of hauling, and Pittman told Ellis that any contract'he might make with Malone would be all right, and that such contract was actually entered into between Ellis and Malone, the Pittman Company would be bound by the contract, and would be liable for damages for the breach of it. It is contended that this charge “limited the jury in finding that Pittman was the duly authorized agent to do the work, without reference to his authority to delegate power to contract for the corporation to an employee of the company.” Pittman testified: “I was the officer of the company to look after the Hazlehurst work.” In so far as appears from the record, he was in sole charge of the paving contract at Hazlehurst, and had power to enter into the alleged contract. If he authorized his foreman to make the hauling contract, the company was bound by such contract.

It is further insisted that the foregoing excerpt instructed the jury that Pittman was authorized to make contracts in the name of the defendant if he had been sent by the corporation to construct sidewalks in the City of Hazlehurst, “without regard to any corporate action granting such authority.” Considering this excerpt in connection with Pittman’s testimony, the charge is not subject to the criticism made.

The evidence supports the verdict, none of the special grounds show reversible error, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    19357.
    KREBS CO. v. GODFREY MARBLE AND TILE CO.
    Decided March 7, 1929.

      Mitchell & Reiniger, for plaintiff in error.

      Dillon, Calhoun & Dillon, Sidney G. Gilbreath Jr., contra.
   Broyles, C. J.

1. “Civil Code § 5541, as to setting out copies of contracts, obligations to pay, or other writings which constitute the cause of action, or the basis of the relief prayed for, applies only where the instrument sued on constitutes the cause of action, or the basis of the relief prayed.” East Atlanta Land Co. v. Mower, 138 Ga. 380 (2) (75 S. E. 418). In the instant case a subcontractor brought suit against the contractor upon a written contract between them. While this contract referred to another written contract, between the contractor and the owner of the building to be erected, the contract between the subcontractor and the contractor constituted the plaintiff’s cause of action, and this contract was attached to the petition as an exhibit. The contract between the contractor and the owner of the building was not set forth in the petition nor attached as an exhibit thereto. The defendant demurred generally to the petition, and subsequently upon the trial made an oral motion to dismiss the petition upon the ground that the contract between the contractor and the owner of the building was not set forth in the petition nor attached thereto.

The court did not err in overruling the general demurrer or the motion to dismiss the petition. The petition may have been subject to special demurrer but it was not subject to general demurrer. See, in this connection, Southern Express Co. v. Cowan, 12 Ga. App. 318 (77 S. E. 208); Social Benevolent Society v. Holmes, 127 Ga. 586 (3) (56 S. E. 775). The ease of Toole v. Baer, 91 Ga. 113 (16 S. E. 378), relied on by counsel for the plaintiff in error, is differentiated by its facts from the instant case.

2. The excerpts from the charge of the court, complained of in the motion for a new trial, when considered in the light of the remainder of the charge and the facts of the case, contain no error that requires a new trial.

3. The special ground of the motion for a new trial (ground 4), complaining of the sustaining of an objection to a certain question propounded to a witness by counsel for the plaintiff in error, is not complete and understandable within itself, and raises no question for consideration by this court.

4. 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.


text:
    19362.
    CAMDEN FIRE INSURANCE ASSOCIATION v. ALMAND.
    Decided March 7, 1929.
    Rehearing denied Abril 9, 1929.

      Spalding, MacDougald & Sibley, G. G. Groclcett, Estes Doremus, for plaintiff in error.

      G. H. Williams, contra.
   Broyles, C. J.

(After stating the foregoing facts.) Conceding (but not deciding) that an award may be impeached or attacked by an appraiser who did not sign the award (26 Corpus Juris, 427, par. 569), and that the court erred in striking that portion of the amendment to the answer which tended “to impeach the appraisal,” the error was harmless for the reason that if the portion stricken had been allowed, and if the evidence had sustained its averments as to the appraisal and award, the result of the trial would have been the same, since the great preponderance of the evidence, independent of and exclusive of the evidence as to the appraisal and the award, authorized, if it did not demand, the verdict. The same reasoning applies to the refusal of the court to dismiss the petition on the oral motion of the defendant. The petition, though it set forth the award, was not based on the award, and the ease could have proceeded to the verdict and judgment for the plaintiff without any mention of the award, either in the pleadings or the evidence.

It follows, from the foregoing ruling, that the ground of the motion for a new trial which complains of the admission in evidence of the award of the appraisers, on the ground that it was void because the defendant had not been given the required notice as to the appointment of the umpire, is without merit. Furthermore, it appears from the facts of the case that the defendant by its conduct, after the appointment of the umpire, was estopped from raising such a point.

The other special grounds of the motion for a new trial are not argued or insisted upon in the brief of counsel for the plaintiff in error and are treated as abandoned.' While the verdict was directed by the court, neither the bill of exceptions nor the motion for a new trial contains an assignment of error upon such direction, the assignment being merely that the verdict as directed was contrary to law and the evidence. Such an assignment of error, under repeated rulings of the Supreme Court and this court, raises only the question whether the verdict was supported by any evidence, and in this case the verdict was authorized by ample evidence.

Judgment affirmed.

Lulce and Bloodworlh, JJ., concur.


text:
    19365.
    MAYS v. THE STATE.
    Decided March 7, 1929.

      W. E. Mann, W. Gordon Mann, for plaintiff in error.

      John O. Mitchell, solicitor-general, contra.
   Bloodworth, J.

The indictment charged that the accused did “cut and stab” Lois Gibson with a razor. The trial resulted in a verdict of guilty. A motion for a new trial was overruled, and the defendant excepted. The motion for a new trial contained the general grounds only, but the plaintiff in error contends that there is no evidence to support the verdict of guilty. With this insistance we agree. The evidence shows that Lois Gibson was cut, but there is no evidence to show that she was cut with a razor or with a weapon substantially of the same character. Indeed none of the witnesses saw the accused in possession of any weapon, and none is shown by the evidence. Nor does the evidence show the character of the wound inflicted, further than that she was cut. This being true, there is no evidence to support the verdict and the motion for a new trial was improperly overruled. The facts of this case differentiate it from Watson v. State, 21 Ga. App. 637 (94 S. E. 857), and cases there referred to.

Judgment reversed.

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


text:
    19382.
    CITY OF ATLANTA v. HINES.
    Decided March 7, 1929.

      J. L. Mayson, G. S. Winn, J. G. Savage, for plaintiff in error.

      Alexander & McLarty, contra.
   Luke, J.

Clarence Hines brought his action for damages against the City of Atlanta, the court overruled a general demurrer to the petition, and the defendant excepted to this ruling. The petition, addressed to the superior court of Eulton county, follows: “The petition of Clarence Hines shows to the court as follows:

“1. That the City of Atlanta, the defendant herein, is a municipal corporation located in said State and county.
“2. That pursuant to section 910 of the revised Code of Georgia, petitioner has presented in writing more than thirty days prior to this date to the governing authorities of said municipality the claim for damages herein set out, stating the time, place, and extent of the injury, and the negligence which caused the same, and said claim has been advertised by said governing body, and that petitioner has otherwise complied with the aforesaid section 910 of the Code of Georgia.
“3. That the defendant, through its negligence, has damaged petitioner in the sum of $6,525, as is more fully shown hereinafter.
“4. That in July, 1927, defendant began work on Luckie street in front of Hotel Luckie, known as 180 Luckie street northeast, which hotel on the 1st day of March, 1927, was leased by petitioner for a period of five years from that date at a monthly rental of $350 per month for the first year, $400 per month for the second year, and $450 per month for the last three years. In September, 1927, the defendant dug a trench in the aforesaid street in front of the said hotel, approximately six or eight feet deep and about six feet wide, for the purpose of laying a trunk-line sewer, and shortly thereafter tore up and removed the paving in the street, leaving the same in a very dangerous and almost impassible condition.
“5. ’ In December of the same year defendant tore up the sidewalk in front of petitioner’s hotel, leaving a drop from the bottom step of said hotel to the level of the street of about four feet.
“6. The street in front of petitioner’s hotel has been continuously in a very dangerous and almost impassible condition up until about April 26, 1928.
“7. On or about the 11th day of December, 1927, defendant placed fences around every street leading to petitioner’s hotel, so it was impossible for vehicles of any kind to get in and out of the street, which fences were left in that condition while the street was torn up.
“8. That the defendant has been negligent in tearing up the aforesaid street and leaving it in an impassible condition for months before they were ready to start paving the street' and making the other improvements contemplated; that the defendant was negligent in cutting the street down so that there was a distance of about four feet from the bottom step of petitioner’s hotel to the street and leaving it in that condition for months; that defendant was negligent in cutting off all means of access to defendant’s place, including wagons to bring in coal for the purpose of heating the hotel, for a period of several months before they were ready to begin the aforesaid improvements. • ,
“9-. The petitioner repeatedly told defendant of the damages that he was suffering due to the aforesaid unnecessary delay, and made repeated requests on defendant to proceed with the contemplated improvements.
“10. That petitioner has for rent in the aforesaid hotel 108 rooms, which before the street was blocked were almost constantly occupied, but since the street has been blocked only about eighty per cent, have been occupied, due to the fact that a large portion of his business comes from tourists, who have been unable to get to defendant’s [ ?] hotel during the time that the street has been blocked.
“11. Petitioner shows further that at the time of said interruption of traffic he had his dining-room leased to a Miss Pitts, who was running it successfully and paying him $75 per month rent, but, due to the obstruction in traffic and consequent loss of trade, on or about December 1st, Miss Pitts broke her contract and moved out, giving this as her reason for doing so.
“12. Petitioner shows that he has lost three months’ rent from his dining-room due to the aforesaid negligence of defendant, amounting to $225, and that, due to the same cause, he has lost approximately $350 a month revenue from the rent of his rooms for the past nine months, amounting to $3150, and that he has been further damaged in that the value of his leasehold was totally destroyed during the aforesaid period in which ingress and egress to and from Luckie street was blocked, damaging petitioner’s leasehold to the extent of $3150, making a total of $6525.
“"Wherefore petitioner asks judgment against defendant in the principal sum of $6525, together with cost of this suit.”

Since the only exception in the bill of exceptions is to the overruling of the general demurrer, that is the sole question presented here for determination. The order overruling the demurrer reads as follows: “ On consideration the general demurrer is overruled. Special demurrer B of par. 5 is sustained in so far as plaintiff seeks to recover, for loss of rent and loss of revenue as such, but said allegations are allowed to remain in so far as they tend to illustrate damage to the leasehold. Plaintiff is given thirty'days to amend.”

The gist of the general demurrer is that the petition fails to set out a cause of action because “the City of Atlanta has the right to close a street in order to make improvements on same,” and because “plaintiff can not bring the action against the city for temporarily closing the street in order to carry on or perform some public work.”

It is contended by counsel for the defendant in error that since the adoption of the constitution of 1877 containing the provision that “Private property shall not be taken, or damaged, for public purposes, without just and adequate compensation being first paid” (Civil Code (1910), § 6388), Hines has the right to recover for damage to his leasehold consequent upon the making of the improvements indicated in the petition in a reasonable, proper, and expeditious manner, irrespective of any negligence on the part of the city. To sustain this contention, the case most strongly relied on is that of Pause v. Atlanta, 98 Ga. 92 (26 S. E. 489, 58 Am. St. R. 290). Other cases cited in this connection are: City of Atlanta v. Green, 67 Ga. 386; Moore v. Atlanta, 70 Ga. 611; City of Atlanta v. Word, 78 Ga. 276. Another case not cited, which contains an interesting -discussion of the constitutional provision cited and the right to recover consequential damages thereunder, is that of Austin v. Augusta Terminal Ry. Co., 108 Ga. 671 (34 S. E. 852, 47 L. R. A. 755).

A casual examination of the petition clearly shows that the right to recover in the case at bar is based squarely upon the negligence of the city in impeding access to the hotel property for a longer time than was necessary or proper. To this extent, and to this extent alone, the petition sets out a cause of action. Therefore the court did not err in overruling the general demurrer. The decision in Tuggle v. Atlanta, 57 Ga. 114, strongly relied on by the plaintiff in error, which was written prior to the adoption of the constitution of 1877, does not change our view in this regard.

Judgment affirmed.

Bloodworth, J., concurs. Broyles, C. J., dissents.


author: Jenkins, P. J.

text:
    19154.
    NATIONAL BANK OF LUMPKIN v. MILLER.
    Decided March 13, 1929.

      George Y. Harrell, for plaintiff.

      A. W. & John G. Gozarl, Bradford Bagleij, for defendant. _
   Jenkins, P. J.

1. The bill of exceptions recites that the judge directed a verdict for the defendant. The only assignment of error is upon the judgment overruling the plaintiff's motion for a new-trial. The only grounds of the motion for new trial are: that the verdict is contrary to evidence and without evidence to support it, is decidedly and strongly against the weight of the evidence, and is contrary to law and the principles of justice and equity. The only question presented to this court for determination is whether the’court erred in overruling the motion for a new trial upon the grounds stated therein, and the grounds of the motion do not raise the point that the court erred in directing a verdict because there were issues of fact which should have been submitted to the jury. Kerce v. Davis, 165 Ga. 168 (140 S. E. 287). This is true although the judgment overruling the motion for a new trial is assigned as error upon the ground that “under the law and the facts and evidence in said case the court erred in directing a verdict in said case,” since that ruling is not assigned as error, either in the motion for a new trial, or in the bill of exceptions, and does not appear to have been passed upon by the trial judge.

2. This was a suit for damages, by the bank, against Miller, in which it was alleged that the defendant, as landlord, had seized and disposed of certain crops upon which the bank held a mortgage, as to which crops the landlord's superior lien had, with the knowledge of Miller, been waived in favor of the mortgage by his predecessor in title. From the evidence it appears that Miller became the owner of the land on March 18, 1926, that on January 25, 1926, the attorney of the previous owner wrote to Miller that he had rented the premises to a certain person, and that, as had been done theretofore, the landlord's lien on the crops “would” be waived in favor of the bank, subject, however, to the approval of Miller or whoever else became the owner. According to Miller's testimony, at the time he became the owner of the land he called upon the attorney of the previous owner, who had written the letter referred to, for the rent note; whereupon the attorney told him that if the previous owner had continued -to own the place she would run it as she had theretofore, by waiving the rent, but “if you buy it, you can do as you please about that,” and Miller replied that he would decide that for himself. It appears, therefore, from the testimony of Miller, that he had no actual knowledge or notice of any such waiver at the time he became the owner of the land, and the only record notice of such a waiver appears from such an entry written upon the bank’s mortgage and recorded April 9, 1926. Accordingly, since the proof does not show a waiver on the part of the defendant himself of his landlord’s lien, and the evidence does not require a finding that he was aware that any such waiver had been made by his predecessor in title, under the rule stated in the preceding division of this decision the court did not err in overruling the plaintiff’s motion for a new trial.

Judgment affirmed.

Stephens and Bell, JJ., concur.


author: Stephens, J.

text:
    19158.
    DONALDSON v. GILLIAM.

      Decided March 13, 1929.
    Rehearing denied April 12, 1929.

      Pat Haralson, Green A. Jones, Joseph G. 'Collins, for plaintiff in error.

      Thomas H. Crawford, contra.
   Stephens, J.

E. L. Gilliam brought suit against T. P. Donaldson in the justice’s court of the 1205th district, G. M., of Fannin county, Georgia, which was tried before the Honorable M. C. Goss, N. P. and J. P., and a jury, to recover for an alleged trespass on the plaintiff’s land, caused by a cow of the defendant coming upon the land and destroying some shrubbery growing thereon, to the plaintiff’s damage in the sum of $2.50. The case was tried before a jury, which rendered judgment for the plaintiff in the sum of $9.65 and the costs. As to the jurisdiction of the tribunal trying the issue, see section 2034 of the Political Code (1910), and James v. Thompson, 148 Ga. 201 (96 S. E. 216). A certiorari brought by the defendant was, after a hearing in the superior court, dismissed. To the judgment dismissing the certiorari the defendant excepts.

The sole issue presented upon the trial before the jury in the justice’s court, and in the certiorari, was whether or not the provisions of the stock law of this State were in force in Mint Hill militia district in Fannin county, Georgia, in which was the plaintiff’s land upon which the alleged trespass occurred. In the determination of this issue it was necessary to determine only whether or not, after the district had, by an election duly held, adopted the provisions of the stock law, there had been erected around the district such fences as the law required as a condition precedent to the stock law’s going into effect in the district. See section 2043 of the Political Code of 1910 and section 2044 of Park’s Code, vol. 8. One of the lines of the district, which was about 3700 yards in length, over two miles, ran along the line between Fannin county in the State of Georgia and the State of Tennessee. While it appeared without dispute in the evidence, that, in this territory of the State of Tennessee which abutted immediately upon Flint Hill district in Fannin county, Georgia, stock were legally permitted to run at large and come into Flint Hill district, and there was no fence and had never been any fence along the State line between the district and the State of Tennessee which would prevent stock that legally ran at large in the State of Tennessee from coming into Flint Hill district in the county of Fannin, State of Georgia, from the State of Tennessee into Flint Hill district in the State of Georgia, it was contended by the defendant that, by reason of a failure of the county authorities of Fannin county, Georgia, to erect along the State line a fence which would prevent the incursion of stock from the State of Tennessee into the district, the district had not been fenced as required by law, as contained in the code sections cited, and that by reason of such failure the provisions of the stock law of this State had not gone into effect in the district. A determination of the case is narrowed to the question whether or not, in contemplation of the acts of the legislature codified in the sections cited, relative to the adoption of the provisions of the stock law in a district, it is necessary, in order to constitute a compliance with the law as to fencing-the district, to fence that part of the district which borders upon the territory of another State where, in this territory of another State immediately abutting upon the district, stock are permitted to run at large.

The acts of the legislature codified in the sections cited provide, as to fencing a district which has adopted the provisions of the stock law by an election duly held, that fences shall be “erected around the lines of said district in order to prevent the incursion of stock from other counties or districts,” and that the stock law shall not go into effect in the district until a fence of a designated character, as prescribed by law, “has been erected around portions of such district as touch non-stock or fence-law districts or counties.” It is suggested that the provisions in the acts as to preventing the incursion of stock from other “counties” or “districts,” and the erection of a fence around portions of the district which touch non-stock or fence-law “districts” or “counties,” have reference only to counties and districts in the State of Georgia, and have no reference to the territory of another State, and that, therefore, under these provisions of the acts, it is not a condition precedent to the going into effect of the stock law in the district that the district be fenced along the State line in order to prevent the incursion of stock from the other State. We can not adopt this construction of the acts. To do so would defeat the manifest intention of the legislation as expressed in the act, in its application in every militia district in this State which borders upon the line of another State. The object and intention of the provisions with reference to erecting fences around the district is to prevent the incursion of stock, from whatever source, into the district. To leave the district open and unfenced upon that portion of the district which abuts upon a State line at a place where, in the other State, stock are legally permitted to run at large, would expose the district to the incursion of stock from the other State, and would render the fencing of the district ineffectual to prevent the incursion of stock into the district. The acts with reference to the adoption of the stock law in a district by the erection of suitable fences around the district are general laws, and, by the constitution of this State, should have general operation throughout the State. Civil Code (1910), § 6391. The construction contended for, which would destroy the effectiveness of these provisions of the act in the militia districts bordering on the State line, would at least violate the spirit of this constitutional provision. The acts, in referring to other “counties” and “districts,” do not expressly limit these terms to counties and districts within the State of Georgia. It is only by inference that such a limitation can be read into the acts. There are counties and districts in other States, and perhaps judicial notice could be taken of this fact. Whether or not this can be done, it certainly can be taken that the legislature could, in adopting the acts, have assumed that States abutting upon the State of Georgia are divided into counties and districts. Irrespective of what may constitute a county, any marked out territory would constitute a district. An entire State itself, in so far as it is a marked out and definite territory, is in one sense a district. We must conclude that the act contemplates the fencing of a district which has adopted the provisions of the stock law against all surrounding territory in which stock are legally permitted to run at large, including territory in a State upon which the district abuts. We therefore conclude that by a failure to fence Mint Hill district in Fanning county along its line which abuts upon the State of Tennessee, there has been no compliance with the provisions of the statutes requiring a fencing of the district as a condition precedent to the provisions of the stock law going into effect in the district.

Headnotes 2, 3, and 4 need no elaboration.

The verdict found for the plaintiff was contrary to law, and the judge of the superior court erred in not sustaining the certiorari brought by the defendant.

Judgment reversed.

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


text:
    19273.
    Long v. Carter.
   Stephens, J.

1. A person holding the office of justice of the peace in this State does not vacate the office by ceasing to be a resident of the district for which he was elected, where he continues to reside within the State, and where the fact of his cessation of residence has not been judicially ascertained. Political Code (1910), § 264 (5).

2. A petition which alleged damage to the petitioner by conduct of the defendant in issuing, by virtue of his office as justice of the peace in the district for which he had been elected a justice, a fi. fa. on the foreclosure of a laborer’s lien against the petitioner, and causing the fi. fa. to be levied on certain property of the petitioner, and in after-wards rendering judgment in the proceedings in the petitioner’s absence, he having ceased, to be^a resident of the district and residing elsewhere in the State, but which did not allege that the fact of his having ceased to be a resident of the district for which he had been elected justice had been judicially ascertained, failed to allege that, in committing the acts complained of he was acting in a capacity other than in the performance of a judicial duty.

Decided March 13, 1929.

M. B. Eubanks, for plaintiff. Graham Wright, for defendant.

3. Since judicial officers are not responsible in damages for acts bona fide performed in the administration of their judicial duties, and since it appears from the petition that the damage suffered by the petitioner was caused solely by acts of the defendant performed in the discharge of his judicial duties as justice of the peace, and it does not appear that at the time he was not acting bona fide in the performance of such duties, the petition failed to set out a cause of action, and was properly dismissed on demurrer.

Judgment affirmed.

Jenkins, P. J., and Bell, J., eoneur.


text:
    19277.
    Gray v. Scoggins.
    Decided March 13, 1929.

      E. S. Taylor, Graham Wright, for plaintiff.

      Wesley Shropshire, Rosser & Shaw, for defendant.
   Stephens, J.

In a suit in trover to recover for the conversion of a promissory note to which the plaintiff claimed title as payee, where the establishment of her title was dependent upon the invalidity of her transfer of the note by indorsement to a person under whom the defendant claimed title, by reason of the insanity of the plaintiff’s transferee, and where the only proof tending to establish the insanity of the plaintiff’s transferee at the time of the transfer was an adjudication by the court of ordinary, made more than a month afterwards, adjudging the plaintiff’s transferee insane, and the testimony of the plaintiff that after she had transferred the note to the transferee she “learned” that the transferee was insane (which was hearsay and had no probative value), the evidence was insufficient to establish the fact of the transferee’s insanity at the time of the transfer by the plaintiff. The evidence therefore was not sufficient to establish the' invalidity of the transfer of the note, and it appears from the evidence that the plaintiff, by a valid transfer by indorsement had divested herself of the title to the note. The court properly awarded a nonsuit.

Judgment affirmed.

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


text:
    18583.
    Hartford Accident and Indemnity Company et al. v. Thompson, guardian.
    Decided April 9, 1929.

      E. J. Stoddard, T. Elton Drake, for plaintiffs in error.

      Key, McClelland & McClelland, contra.
   Luke, J.

“Where a person whose regular business relates to duties as an official of a private corporation employs persons to engage in the construction of a building for himself to be used as his residence, he is not an employer, nor are the persons engaged in constructing the building employees within the meaning of the workmen’s compensation act.

“(a) Where a workman so employed suffers injury in the course of his employment, jurisdiction does not devolve on the industrial commission to award compensation under the provisions of the act.

“(b) The industrial commission not being a court of general jurisdiction, and having no authority under the statute to award compensation for injury to an employee of the character above mentioned, jurisdiction as to such matter can not be conferred by the act of the parties.”

The above are the headnotes to an opinion of the Supreme Court rendered on certiorari in this case. Eor the full opinion of that court see 167 Ga. 897 (147 S. E. 50). Under these rulings the former judgment of this court rendered in this ease on March 7, 1928, and reported in 38 Ga. App. 17, must be vacated; and the judgment of the trial court, sustaining the award of the industrial commission, is

Reversed.

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


text:
    18966.
    CLIETT v. THE STATE.
    Decided April 9, 1924.

      R. D. Feagin, W. D. Auliman, for plaintiff in error.

      Charles II. Garrett, solicitor-general, contra.
   Broyles, C. J.

(After stating the foregoing facts.) From the ruling of the Supreme Court it follows that the trial court erred in striking the plea of former jeopardy and that the subsequent proceedings in the case were nugatory.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    19234.
    LOUISVILLE AND NASHVILLE RAILROAD COMPANY v. RUDDER, administratrix.
    Decided April 9, 1929.
    Tye, Thomson & Tye, William Butt, Morris, Hawkins & Wallace, for plaintiff in error.

      Hewlett & Dennis, contra.
   Broyles, C. J.

1. This was a suit for damages against a railroad company for the homicide of one of its employees. It was brought under the Federal employer’s liability act, and hence no presumption of negligence arose against the defendant on proof that the homicide was caused by the running of one of its trains. On the contrary, the burden was upon the plaintiff to affirmatively show that the defendant was negligent in some one of the ways alleged in her petition, and that such negligence was the proximate cause of the homicide. Patton v. Texas & Pacific Ry. Co., 179 U. S. 658 (21 Sup. Ct. 275, 45 L. ed. 361). However, this can be shown by either direct or circumstantial evidence, and in the instant case the direct and circumstantial evidence, together with the legal and reasonable inferences arising therefrom, authorized the jury to find that the plaintiff had carried this burden.

2. Under repeated rulings of the Supreme Court of the United States, in a suit against a railroad company, brought under the Federal employer’s liability act, the “scintilla of evidence” rule, of force in this State, can not be applied. In such a case the Federal rule is that the submission to the jury of contested issues of fact is not required in the Federal courts where there is only a scintilla of evidence; and this rule must be applied by State courts in all cases arising under the Federal employer’s liability act. Chicago, Milwaukee & St. Paul Ry. v. Coogan, 271 U. S. 472, 474 (46 Sup. Ct. 564, 70 L. ed. 1041). However, in the instant case, as was said by the Supreme Court of the United States, in Western & Atlantic Railroad v. Hughes, 278 U. S. 496 (49 Sup. Ct. 231), decided February 18, 1929, affirming the judgment of this court, 37 Ga. App. 771 (142 S. E. 185) :'“We need not consider whether the rule prevailing in Georgia differs substantially from the Federal rule, for even under the Federal rule it was proper to submit the case to the jury. The evidence introduced by the plaintiff was substantial; and was sufficient, if believed, to sustain a verdict in her favor. There was much conflict in the evidence. . . Some of the testimony given by witnesses for the railroad would, if believed, have entitled it to the verdict as a matter of law. Some of the testimony given by witnesses called by the plaintiff does not seem to us persuasive. But the credibility of the witnesses and the weight of the evidence were obviously matters for the jury.”

In the instant case the material facts which formed the basis of the plaintiff’s theory as to how the homicide occurred were established by substantial evidence, and the theory itself was a reasonable and legitimate one, and was not left in “the realm of speculation and conjecture,” as was the respondent’s theory in the Coogan case. The case of Patton v. Texas & Pacific R. Co., 179 U. S. 658 (21 Sup. Ct. 275, 45 L. ed. 361), and the other cases cited in the brief of counsel for the railroad company, are distinguished by their facts from the instant case. The case of Delaware, Lackawanna & Western R. Co. v. Koske, 279 U. S. 7 (49 Sup. Ct. 202), decided February 18, 1929, in which it was held that the plaintiff' (an employee of the railroad company) had assumed the risk attending work in the railroad’s yard drained by a shallow open ditch or trench, used for the purpose of draining the yard, into which he fell while alighting from an engine of the company in the performance of his usual duties, ¿nd in which case the evidence showed that during the eleven years of his employment the ditch was in the same place and was maintained in the same condition as it was at the time of the infliction of the injuries sued for, is quite different from the case at bar.

3. While the damages recoverable in this case can only be compensatory, and their measure is what the beneficiaries named in the statute, or either of them, and no one else, necessarily lost by the death of the deceased employee, nevertheless, in measuring the damages, the jury were authorized to consider the age, health, earning capacity, expectancy of life, and character of the deceased employee, his manner of treatment of his family, and the amount he contributed from his wages for their support, and to calculate from all these facts the present value of the amount which they, as reasonable and practical men, found and believed the beneficiaries to have lost because of the death of the employee. Eoberts on Federal Liabilities of Carriers, Vol. 2, sec. 608, pp. 1073, 1074. Under this ruling and all the particular facts of the instant case, this court can not hold as a matter of law that the verdict (for $15,000) was excessive.

4. In the light of all the facts of the case, none of the special grounds of the motion for a new trial show cause for a reversal of the judgment.

5. The verdict was authorized by the evidence, and the refusal to grant a new trial was not error for any reason assigned.

Judgment affirmed.

Luke and Tiloodworllv, JJ., concur.


text:
    19374.
    Dodgen et al. v. Fowler, executor.
    Decided April 9, 1929.
   Luke, J.

The evidence in the record being in sharp conflict as to material matters, this case comes within the rule that the first grant of a new trial will not be disturbed when the verdict is not demanded by the law and the facts. Civil Code (1910), § 6204; Douglas v. Hardin, 161 Ga. 838 (2) (131 S. E. 896); Carr v. Carr, 157 Ga. 208 (121 S. E. 227) ; Parks v. Stevens, 21 Ga. App. 180 (94 S. E. 60) ; Louisville, & Nashville R. Co. v. Barksdale, 34 Ga. App. 812 (131 S. E. 298).

Judgment affirmed.

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

John T. Dorsey, John G. Bell, Morris, Hawlcins & Wallace, for plaintiffs in error.

Mozley & Gann, L. M. Blair, contra.