text:
    18849.
    TYRE v. THE STATE.
    Decided May 15, 1928.
    Rehearing denied June 12, 1928.
    TP. D. Turner, M. Price, D. M. Parker, for plaintiff in error.
    TP. B. Gibbs, solicitor-general, contra.
   Bloodworth, J.

This extraordinary, motion for a new trial presents two questions: First, one of the twelve jurors who rendered the verdict against the plaintiff in error is alleged to have been an incompetent juror because of certain alleged statements made by him showing his bias and prejudice against the plaintiff in error. Second, alleged newly discovered evidence. As to the first of these the State made a counter-showing, and as to the second it appears that the alleged newly discovered evidence comes from a witness who testified in the case. Under the facts of this case and the principles announced in the following rulings, the judge did not abuse his discretion in overruling the motion for a new trial:

(a) “The granting of a new trial on the ground of newly discovered evidence is not favored by the courts, and it should clearly appear that the evidence newly discovered is of such a character as to probably change the result upon another trial.” McDuffie v. State, 2 Ga. App. 401 (58 S. E. 544).

(b) “Extraordinary motions for new trial are not favored. Perry v. State, 117 Ga. 719 (45 S. E. 77); Norman v. Goode, 121 Ga. 449 (40 S. E. 268); Burge v. State, 133 Ga. 431 (66 S. E. 243); Bass v. State, 154 Ga. 112, 115 (113 S. E. 524).” Coggeshall v. Park, 162 Ga. 78 (1).

(c) “Motions for new trials upon extraordinary grounds are not favored by the courts (Hays v. Westlrook, 96 Ga. 219, 22 S. E. 893), and a stricter rule is applied to such motions where they are based upon the ground of newly discovered evidence than to an ordinary motion based upon such a ground. Norman v. Goode, 121 Ga. 449 (49 S. E. 268).” Jackson v. State, 30 Ga. App. 669 (118 S. E. 757).

(d) “Extraordinary motions for new trials are not favored by the courts, and in passing upon such motions the trial judge is vested with a wide discretion. In this case the extraordinary motion, based upon the ground that two of the jurors who tried the defendant had prior to the trial expressed an opinion as to the defendant’s guilt, was met by a counter-showing by the State, and, under this showing,- this court can not hold that the trial judge abused his discretion in overruling the motion.” Durden v. State, 31 Ga. App. 295 (121 S. E. 840).

(e) “The extraordinary motions for new trials contemplated by our statute are such as do not ordinarily occur in the transaction of human affairs, as when a. man has been convicted of murder, and it afterwards appears that the supposed deceased is still alive, or where one is convicted on the testimony of a witness who is subsequently found guilty of perjury in giving that testimony, or where there has been some providential cause, and cases of like character. Malone v. Hopkins, 49 Ga. 221; Cox v. Hillyer, 65 Ga. 57; Harris v. Roan, 119 Ga. 379 (46 S. E. 433); Wheeler v. State, 149 Ga. 473 (100 S. E. 568); Harris v. State, 150 Ga. 680, 682 (104 S. E. 902).” Coggeshall v. Park, 162 Ga. 78 (2) (132 S. E. 632); Lawhorn v. State, 155 Ga. 373 (116 S. E. 822), and cit.

(f) “All applications for new trials upon the ground of newly discovered evidence are addressed to the sound legal discretion of the trial judge; and even if the newly discovered evidence relied on as a ground for a new trial was not cumulative in its nature, there is nothing in the record to indicate that the judge abused the discretion vested in him in overruling the motion on this ground. Miller v. State, 119 Ga. 561 (46 S. E. 838).” Bradford v. Brand, 132 Ga. 642 (64 S. E. 660).

(g) “Where a motion for new trial is based exclusively on the ground of newly discovered evidence, and it appears that the evidence relied on is cumulative only and would not probably produce a different result, the motion should be denied.” Hanye v. Candler, 99 Ga. 214 (25 S. E. 606).

(h) “The alleged newly discovered evidence as set out in the affidavit attached to the motion for new trial is too indefinite to be of any value as evidence, and is not such as would probably cause a different verdict on another trial.” Smith v. State, 21 Ga. App. 143 (94 S. E. 62).

(i) “An extraordinary motion for new trial, based upon newly discovered evidence, ought not to prevail, unless there has been full diligence to procure the evidence before the trial; nor unless the new evidence would probably produce a different verdict if a new trial were had.” Patterson v. Collier, 77 Ga. 292 (3 S. E. 119).

(j) The plaintiff in error “failed to exercise due diligence; since one of the witnesses whose testimony was discovered after the,trial was present at the trial, and the other was actually sworn as a witness for the defendant.” Calhoun v. State, 17 Ga. App. 515 (3) (87 S. E. 769). See McNair v. Newsome, 16 Ga. App. 392 (2) (85 S. E. 616); Evans v. Grier, 29 Ga. App. 426 (4, 5, 6) (115 S. E. 921).

(k) “This court will not interfere with the judgment of a trial court granting a new trial upon the ground of newly discovered evidence unless it is made to appear that the trial judge abused his discretion.” Exchange Bank of Oakfield v. Cone, 18 Ga. App. 432 (89 S. E. 430).

(l) “Where a ground of a motion for new trial based on newly discovered evidence is filed, and a counter-showing is made, so that a conflict arises as to the material facts upon which the ground is based, a reviewing court will not, except in a case of manifest abuse of discretion, reverse the finding of the trial judge.” Fouraker v. State, 4 Ga. App. 692 (62 S. E. 116).

(m) “Where, after verdict, in a motion for a new trial the impartiality of two of the jurors was attacked, and there was a showing and a counter-showing on the subject, and the presiding judge passed on the conflicting evidence, his finding will not be reversed, unless he has abused his discretion. Jefferson v. State, 137 Ga. 382 (73 S. E. 499).” Embry v. State, 138 Ga. 464 (2) (75 S. E. 604); Frank v. State, 141 Ga. 243, 247 (18), 283 (80 S. E. 1016).

Judgment affirmed.

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


source: Caselaw Access Project

author: Broyles, C. J.

license: Public Domain

text:
    18853.
    Brown v. The State.
    Decided May 15, 1928.
   Broyles, C. J.

1. Section 416 of the Penal Code of 1910 provides that “Any person who shall pursue his business, or the work of his ordinary calling, on the Lord’s day, works of necessity or charity only excepted, shall be guilty of a misdemeanor.” “It is, in every prosecution based upon the above-cited section of the code, incumbent on the State to allege and prove that the acts done by the accused in the course of his ordinary calling were not works of necessity or charity.” (Italics ours). Arnheiter v. State, 115 Ga. 572, 573 (41 S. E. 989, 58 L. R. A. 392).

2. Under the above-stated ruling the indictment in the instant case was subject to the demurrer interposed and the trial court erred in overruling the demurrer.

Judgment reversed.

Luhe and Bloodworth, JJ., concur.

Aldime & Hewitt W. Chambers, for plaintiff in error.

William H. Reynolds, solicitor, contra.


author: Broyx.es, C. J.

text:
    18855.
    Brogdon et al. v. Davis et al., commissioners, etc.
    Decided May 15, 1928.

      W. B. Hollingsworth, for plaintiffs.

      Culpepper & Murphy, for defendants.
   Broyx.es, C. J.

Under repeated rulings of this court and of the Supreme Court, the striking of a defendant’s plea and cross-action is not a final judgment, and the bill of exceptions in such a case (no other judgment being excepted to) must be dismissed.

Writ of error dismissed.

Lulce amd Bloodworih, JJ., eonov/r.


author: Per Curiam:. Luke, J.,

text:
    18765.
    DANFORTH v. THE STATE.
    Decided May 17, 1928.

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

      Roy W. Moore, solicitor, contra.
   Per Curiam:.

The accused was convicted of illegally possessing intoxicating liquor. The undisputed evidence for the State was that she admitted to the arresting officers that the room in which the whisky was found and the house were hers: It is true that in her statement to the jury she denied this, but the jury evidently disbelieved her, and it was not error for the judge, in the absence of a written request, to fail to charge upon the defendant’s contentions as set up solely by her statement. Likewise there was no evidence as to any joint occupancy of the room where the whisky was found, that contention also being raised solely by the defendant’s statement; and accordingly the failure to charge the law relating to joint occupancy was not error. The charge was without material error, and the finding of the jury was authorized.

Judgment affirmed.

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

Luke, J.,

dissenting. Ollie Danforth was convicted of possessing whisky; the court overruled her motion for a new trial, based upon the usual general grounds and upon certain exceptions to the charge to the jury; and she excepted to the overruling of the motion. Briefly stated, the evidence for the State is as follows: IJpon approaching the rear of the house where the defendant lived, two officers heard a crash, saw a woman run out of the room, and found broken glass and the odor of whisky in the bath tub. The officers then went to the front room of the house, where the defendant was sitting alone, and found a quart jug containing a half pint of whisky, under the bed in that room. The defendant said the room she was in was her room, and that the house was her house. The officers did not know whether or not the first woman seen was the defendant’s daughter, but the woman seen by them was grown and had a baby, and the defendant’s daughter had a baby. Immediately after the crash this woman ran towards the room where the defendant was, but the officers caught and held her. When the officers entered the room the defendant was sitting down, had no whisky on her person, made no effort to get the whisky under the bed, and made no objection to a search of the room. She said that the whisky found was not hers, and that she knew nothing of it. The officers did not know whether or not the front room was occupied jointly by the two women, or whether or not the house was occupied by these two and a man. One of the officers testified: “Any one else living in the house would have had access to the front room where we found the half pint of whisky. It could have been put there by'.any one living in the house, I guess, for the rooms join each other.”

The defendant, in her statement at the trial, said that her married daughter occupied the front room with her; that her daughter had a baby, but her husband was not living with her; that the house was not hers, and that she subrented a part of it from one Howard; that she did not tell the officers that the house was hers or that the front room was hers; that any one in the house had access to the front room; that the whisky found was not hers, and that she did not know that any whisky was in the house.

The court charged as follows: “If you believe that whisky was found in the private room of this defendant; that this room was occupied by her as her private, individual room, the law would presume that such whisky so found belonged to her. This presumption is a rebuttable presumption, and if you believe whisky was found in the private, individual room of this defendant, but that it was there without her knowledge or consent, you should acquit her; but if you believe that whisky was found in the private, individual room of the defendant and was her whisky, or if you believe such whisky was in such room with her knowledge, you should convict her.”

It will be observed that the most reasonable conclusion to be drawn from the State’s evidence is that the house was occupied by the defendant and her daughter, and that the room where the half pint of whisky was found was accessible to any occupant of the house. The defendant stated that her daughter lived in the house, that they occupied the front room together, and that defendant had no whisky and did not know that any was in the house.

It appears from his charge that the judge greatly emphasized the theory that the front room was the “private, individual room” of the defendant, by expressing that idea five times in the short excerpt quoted above, and that he did not instruct the jury as to the law governing joint occupancy. Furthermore, the defendant’s only defense finally rested upon the alleged fact that she and her daughter occupied both the house and the room where the whisky was found. Under these circumstances, even in the absence of a request to charge, this being her sole defense, it was, in my opinion, error for the court to fail to charge the law relating to joint occupancy. See McGee v. State, 24 Ga. App. 268 (100 S. E. 733); Shropshire v. State, 69 Ga. 273; Thornton v. State, 18 Ga. App. 744 (90 S. E. 489); Baker v. State, 19 Ga. App. 451 (91 S. E. 785); Toney v. State, 30 Ga. App. 61 (116 S. E. 549).


author: Luke, J.

text:
    18848.
    SPIVEY v. THE STATE.
    Decided May 17, 1928.

      Chastain & Henson, Quincey & Quincey, for plaintiff in error.

      A. B. Spence, solicitor-general, contra.
   Luke, J.

Elisha Spivey was charged with the murder of John Wiggins, and was convicted of voluntary manslaughter. The court overruled the defendant’s motion for a new trial, based upon the usual general grounds and upon seven special grounds, and the movant excepted. Each of the first five of the special grounds alleges that the questioning of various witnesses by the court was error. Wherefore, we shall discuss at length only the first of these grounds.

As a background for the first special exception, we deem L proper to state the'following general outline of the case: The de fendant and his wife, Thelma, had separated, Thelma living at the home of her parents, Mr. and Mrs. J. M. Wooten, and the defendant living several miles away. It had been agreed that first one and then the other of the young people should keep their baby. On May 4, 1927, Thelma went to get the baby. The defendant stated that he told his wife to go on home with the baby and not to be driving around after dark with John Wiggins or any one else. Thelma, with the baby, her younger sister, and John Wiggins drove up to the home of Mr. and Mrs. Wooten in a touring car shortly after dark. The defendant had preceded the others by only a very short time, and had just asked Mr. and Mrs. Wooten about the baby, when Wiggins’ automobile, headed in the same direction, drove up to within a few feet of the rear of the defendant’s car and stopped. The State’s evidence was to the effect that the defendant got out of his car, walked close to where Wiggins was sitting in the other automobile, cursed him, and shot him dead, and that, after firing his pistol twice, the defendant shot his sister-in-law after she had gotten out of the automobile and had started towards her home. The defendant stated that the girl was hit in the car. It was in evidence that the deceased had threatened to kill the defendant before he would let the latter run over him, and that a pistol was found on the left end of the front seat of the automobile where Wiggins was sitting when he was shot. The defendant stated that he was worried about his baby; that Wiggins had threatened him; and that when he approached the car his wife and baby were in, the deceased reached for the pistol to kill him, and he shot to save his life.

Ground 1 of the amendment to the motion for a new trial follows: “The court erred in the trial of said case by propounding in the presence of the jury the following questions to the State’s witness, Mrs. J. M. Wooten, while testifying for the State, and eliciting from her the answers as hereinafter set out to said questions so propounded by the court, to wit: Q. Did you see him after his hands were up? Did you see the body fall? A. No, sir; I didn’t see the body fall. You see, the car was full of smoke. Q. Is that the last impression you have in your mind of what you saw? A. Well, I just saw the car full of smoke, and heard the reports of the pistol, you know. Q. I mean, with reference to the man who was killed, what was his position, the last you saw before it was obscured by the smoke. A. Why, he was sitting up the last I saw him. I didn’t see him fall. Q. Was it then that his hands were up? A. I don’t know whether it was then. I suppose it must have been, because 1 couldn’t have seen his hands after he fell over. Q. How far above his head were his hands ? A. Just about like this (illustrating), like he might have just throwed them up. I don’t know whether he tried to get his pistol or not. Q. Was that about even with his head? — Mr. Quineey: I didn’t understand her answer, your honor, just what she said in reply to your question. The court: I think I understood her. Mr. Quineey: But I want the jury to understand it. The court: All right, sir, you may examine her on cross-examination. Mr. Quincey: I just wanted her to say what she understood. The court: I am not sure I understand you, Judge. I asked her how high his hands were, and she said about like this. Mr. Quineey: I understood her to start to say she didn’t know whether he went to get his pistol or not. The court: She didn’t say anything about a pistol at all. Mr. Quineey: That is what I understood, your honor. Mr. Chastain: May it please the court, I think the stenographer’s notes will show that she did say something about a pistol. Q. By the court: Did you say anything about a pistol? A. I don’t know whether he had started to get a pistol or not, because I couldn’t see from where I was. Elisha, Mr. Spivey, was between me and him, and I couldn’t tell what he was doing until I just saw the hand. Q. The question 1 asked you was how high he threw his hands when you saw his hands go up ? A. Of course, I couldn’t tell you just exactly how high; but then I saw his hands up. Q. How high were they when you saw them? A. Well, it looked like he just throwed them up like this (illustrating). Q. Was that above his head? A. No, sir. Q. How high with reference to his head? A. Well, it seemed like they were just throwed up like that (illustrating). Q. As high as his head? A. I don’t know whether it was as high as his head or not, because I don’t remember.”

The Civil Code (1910), § 4863, and the Penal Code (1910), § 1058, inhibit the trial judge, in any case, from expressing or intimating his opinion as to what has or has not been proved, or as to the guilt of the accused, and provide that a violation of this provision shall be cause for a new trial. “The fact that the trial judge asked questions of witnesses is not cause for new trial, unless the complaining party suffered prejudice thereby” (O’Connell v. State, 5 Ga. App. 234 (5), 62 S. E. 1007), but “trial judges should usually leave the examination of witnesses to the attorneys conducting the ease” (Ray v. State, 4 Ga. App. 67 (5), 60. S. E. 816); and where the judge interrogates a witness at length upon any vital question in a felony case, he takes a grave risk of intimating or expressing an opinion on the evidence, and of bringing about a reversal by the reviewing court. In this connection, we quote from Sharpton v. State, 1 Ga. App. 542, 548 (58 S. E. 60), as follows: “It is almost an intellectual impossibility for a judge to engage in an examination of a witness on vital questions of the case on trial, without in some manner and to some extent indicating his own opinion. Every practitioner knows how eagerly alert jurors are to every utterance from the bench, and how sensitive is the mind of the juror to the slightest judicial expression. Therefore, while the trial judge has the right to ask questions of the witnesses whenever necessary to bring out the truth of the case, we are not prepared to say that it is his duty to do so; and, in exercising the right, he should be careful not to intimate any opinion upon the facts, or use any expression calculated to prejudice the rights of either party.” See Taylor v. State, 2 Ga. App. 723 (59 S. E. 12); Dicks v. State, 2 Ga. App. 192 (58 S. E. 335); Brown v. State, 11 Ga. App. 164 (74 S. E. 1002); Joyner v. State, 12 Ga. App. 217 (77 S. E. 9); Nobles v. State, 13 Ga. App. 710 (79 S. E. 861); Murphy v. State, 13 Ga. App. 431 (79 S. E. 228); Harris v. State, 61 Ga. 359 (1); Gillis v. Bowman, 132 Ga. 762 (64 S. E. 1096); Washington v. Washington, 145 Ga. 814 (90 S. E. 43).

While we know that in propounding the foregoing questions the able judge was only seeking to bring out the truth of the ease, yet we can not escape the conclusion that in so doing he impressed the jury with the idea that he had scant faith in the defense set up by the accused. The State’s main contention was that the deceased was killed in cold blood; while the defendant’s contention was that Wiggins was trying to get a pistol from the automobile'seat with which to shoot, and that he, the defendant, shot to save his own life. If the deceased had his hands above his head when he was shot, he was not at that time trying to get a pistol from the seat of the automobile, and was not seeking to harm the defendant. Wherefore we think that the court’s repeated questions in regard to Wiggins’ hands, especially in the form in which some of the questions were put, were calculated to lead the jury to believe that the court discredited the defendant’s only defense; and this was harmful-error.

However, since all this occurred before the case went to the jury, we place the reversal of the judgment of the trial court on special ground 7 of the motion for a new trial, in which it appears that counsel made a timely motion for a mistrial because of the questions set out in the first special ground. In this connection see Moore v. McAfee, 151 Ga. 270 (11) (106 S. E. 274); Perdue v. State, 135 Ga. 277 (69 S. E. 184); Tanksley v. State, 35 Ga. App. 189 (132 S. E. 263); Howard v. Montezuma Fertilizer Co., 34 Ga. App. 411 (4) (130 S. E. 72).

In view of the foregoing, we deem it unnecessary to discuss special grounds 2, 3, 4, and 5. Suffice it to say that we would not be disposed to reverse the judgment on any of them.

Error is alleged in ground 6 because, after nine witnesses had testified to the good character of the accused, the court excluded from the jury the testimony of each of twenty-five other named witnesses who would have testified to the good character of the accused. We can conceive of cases where it would be an imposition on the court and a hindrance to justice for countless witnesses to be allowed to testify to a fact already established. However, we do not think this is such a ease. The main contention of the State was that the accused was a cold-blooded murderer, while that of the defendant was that he killed the deceased in order to save his own life. In the case of Seymour v. State, 102 Ga. 803 (30 S. E. 263), it was said: “Evidence of good character is not admitted as a mere make-weight, but as evidence of a positive fact, and may of itself, by the creation of a reasonable doubt, produce an acquital.” See also Shropshire v. State, 81 Ga. 589 (8 S. E. 450); Taylor v. State, 13 Ga. App. 715 (79 S. E. 924).

What effect upon the jury the testimony of one or more of the witnesses who were not allowed to testify would have had can not be surmised. It might have been nil, or it might have had great weight. Our observation is that it does not ordinarily take character witnesses long to give their testimony; but, even if this were not true, the right of a defendant accused of crime to present his defense fully is of vastly more importance than the expedition of trials. We think this ground of the motion discloses reversible error, and so hold.

Judgment reversed.

Bloodworth, J., concurs in the judgment of reversal, hut does not agree to all that is said in the opinion. Broyles, O. J., dissents.


author: Stephens, J.

text:
    17375.
    PARKER & DUNN v. STATE OF GEORGIA.
    Decided May 22, 1928.

      Paul T. Chance, for plaintiffs in error.

      W. Inman Curry, solicitor, contra.
   Stephens, J.

After proceedings had been instituted in the city court of Richmond county in behalf of the State of Georgia against C. B. Wellmaker, to condemn an automobile upon the ground that it had been seized while being used by the defendant in the transportation of alcoholic liquors on a public highway in this State, and after the plaintiff therein had made a written application for a short-order sale of the automobile upon the ground that its upkeep was expensive, as provided in § 6068 in the Civil Code of 1910, Parker & Dunn filed an intervention claiming title to the automobile as vendors under a retention-of-title contract of sale. Upon the trial the court sustained the claim of the intervenors and awarded to them a lien upon the automobile to the extent of the unpaid purchase-money and interest, and on the same date granted the plaintiff’s application for a “short-order” sale and ordered that the property be sold after ten days’ notice by publication as required by law. The property was sold at the time and place designated. Afterwards the intervenors, Parker & Dunn, filed in the same court a motion to set aside this sale upon the sole ground that the movants had not received notice of the application for the “short-order” sale, and that for this reason the order of sale and the sale thereunder were invalid. The material part of this motion reads as follows:

'“4. Petitioners further show that the aforesaid order directing the sale of said automobile was granted by the court without the three days notice to petitioners as required by the statutes of Georgia in such cases, and without any notice at all to petitioners of such application for such order; that no necessity existed, as contemplated by statute, for such application and order, as the said automobile was, by order of this court, previously granted in said case, stored with petitioners, free of charge, and was in no way deteriorating in value; that the court having on the same date adjudged petitioners’ title to be good and valid, they were entitled to have such three days’ notice required by statute, and entitled to a hearing on said application, in order to have set forth the above facts and been otherwise advised of (such proceedings; that not having such notice in) writing as required by law, the said order was and is null and void, and the sale had in pursuance thereof is null and void, and should be so declared by this court.”

After hearing evidence the court overruled the motion to set aside the sale. The intervenors excepted and brought the case to this court for review. The judgment overruling the motion to set aside the sale was affirmed in the case of Parker & Dunn v. State of Georgia, 36 Ga. App. 370 (136 S. E. 800), upon the ground that the intervenors, who came into the case by an intervention filed after the application for the “short-order” sale had been made, took the record as they found it and were chargeable with notice of the application for an order to sell the property, and that therefore there was no merit in the motion to set aside the sale upon the sole ground that the intervenors had received no notice of the application fox an order of sale. Upon certiorari obtained by the intervenors the Supreme Court, in 166 Ga. 256 (142 S. E. 879), held that the order of sale was invalid, upon the ground that no legal and valid notice had been given to the defendant, C. B. Well-maker, against whom, as the original owner of the automobile having it in possession at the time it was seized, the original proceeding to condemn the automobile was brought. The Supreme Court accordingly reversed the judgment of affirmance rendered by this court. It is necessary, therefore, in giving effect to the judgment of the Supreme Court, that the judgment of the Court of Appeals, affirming the judgment of the city court of Richmond county, be vacated, and that the judgment of the city court of Richmond county be reversed.

Judgment reversed.

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


author: Jenkins, P. J.

text:
    17820.
    Curtis et al. v. Ashworth.
    Decided May 22, 1928.

      Harris & Harris, for plaintiffs in error.

      Willingham, Wright & Covington, contra.
   Jenkins, P. J.

The judgment of affirmance heretofore entered in this case (36 Ga. App. 783, 138 S. E. 286) having been reversed by the Supreme Court on certiorari (165 Ga. 782, 142 S. E. 111), and the former judgment of this court having been vacated and set aside, the judgment of the trial court is now reversed because it overruled the demurrer in which it was contended that there was a misjoinder of parties defendant. Direction is given that the plaintiff be permitted to amend his petition by striking O. W. Curtis as a defendant, leaving the case to proceed against the defendant Ella Curtis.

Judgment reversed, with direction.

Stephens and Bell, JJ., concur.


text:
    18407.
    Southeastern Realty Company v. Griffin.
   Jenkins, P. J.

A contract signed by the purported vendor and vendee of certain real estate, by which the vendor agreed to sell described property to the vendee for a named price, so much to be paid in cash and the balance in “monthly notes,” the time of maturity of which was undisclosed, and which contract provided that the cash payment was to be derived from the proceeds of a loan to be thereafter placed upon the property by the vendor, but did not state the terms and conditions of the loan, or from whom it was to be obtained, or the length of time for which it was to run, and which did not provide for its assumption by the vendee, was too vague and indefinite to be enforced as a sale agreement, and consequently a stipulation therein that a named agent should receive a named commission for effecting the agreement was ,a mere naked promise, unsupported by any valid consideration, and was unenforceable. Trust Company of Ga. v. Neal, 161 Ga. 965 (132 S. E. 385); Crawford v. Williford, 145 Ga. 550 (89 S. E. 488); Georgia Iron & Coal Co. v. Rogers, 12 Ga. App. 429 (77 S. E. 213). If the contract had provided for the assumption of a then-existing loan identified by the agreement, the rule might be different, since such a reference might furnish a key by which the provisions of .the outstanding contract could be ascertained with certainty without resort to parol evidence. Massell Realty Co. v. Hanbury, 165 Ga. 534 (141 S. E. 653); Muller v. Cooper, 165 Ga. 439 (141 S. E. 300); Rowland v. Kraft, 31 Ga. App. 593, 596 (121 S. E. 526). In a suit by the broker for commissions, it was not error for the judge of the municipal court to reject the contract sued on, when it was tendered in evidenee, and to direct a verdict in favor of the defendant; and the judge of the superior court did not err in overruling the certiorari.

Decided May 22, 1928.

H. F. Sharp, Boy S. Brennan, for plaintiff.

Hooper & Hooper, for defendant.

Judgment affirmed.

Stephens and Bell, JJ., eoneur.


text:
    18408.
    Baxley v. Thomas.
    Decided May 22, 1928.

      H. L. Williams, for plaintiff in error.

      H. J. Lawrence, contra.
   Stephens, J.

1. An affidavit as the basis of warrant to dispossess a tenant can not, by a motion for a new trial, be attacked for insufficiency in the description of the premises, or for duplicity in the grounds alleged in the affidavit. These objections should be made by demurrer or by a motion to dismiss, in the nature of a demurrer.

2. This being a proceeding to dispossess a tenant upon the ground that he was holding over beyond his term, and also upon the ground that he had not paid the rent when due, and the former ground being established as true by undisputed evidence, the court did not err in directing the jury to find a verdict in favor of the plaintiff for the premises in dispute.

3. Since, in a proceeding to dispossess a tenant, the statute (Civil Code of 1910, § 5389) provides not only for the restoration of the premises to the landlord, but for a recovery of double rent under certain conditions, the court did not, as against an exception that in such a proceeding rent is not recoverable, err in directing the jury to find in favor of the plaintiff in a certain sum as rent.

4. Since counsel for the plaintiff in error, in the brief and argument, expressly limits his insistence upon the insufficiency of the evidence 'to support the verdict solely to the ground that the “evidence does not follow the affidavit,” and the “verdict does not follow the affidavit and the warrant,” this court is not bound to inquire as to the sufficiency of the evidence to support the verdict otherwise than as insisted upon by counsel in the brief and argument.

5. There is no merit in the exception made to the sufficiency of the evidence to support the verdict for the reason stated by counsel for the plaintiff in error.

Judgment affirmed.

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


text:
    18413.
    Motors Mortgage Corporation v. Purchase-Money Note Company.
   Jenkins, P. J.

1. Where the force and effect of a contract executed in another State are governed by the laws of that State, and no law of that State is pleaded or proved, it will be presumed that the common law is of force there. Gunn v. Wilson, 20 Ga. App. 14(3) (92 S. E. 721); Hines v. Evitt, 25 Ga. App. 606(3) (103 S. E. 865). In such a case the decisions of the courts of this State dealing with such a contract, under the common-law rule governing the same, will be followed, even though the courts of last resort in the State where the contract was executed may have construed a similar contract differently under the rules of the common law. Patlillo v. Alexander, 105 Ga. 482 (30 S. E. 626); Akers v. Jefferson County Savings Bank, 120 Ga. 1066 (48 S. E. 424); Thomas v. Clarkson, 125 Ga. 72 (3) (54 S. E. 77, 6 L. R. A. (N. S.) 658).

2. “The cardinal rule of construction, both at common law and under our code, is, that instruments containing conditions, limitations, and restrictions are to be construed in each case in such way as to carry into effect the intent of the parties as gathered from the instrument as a whole.” Wadley Lumber Co. v. Lott, 130 Ga. 135, 137 (60 S. E. 836); Civil Code (1910), § 4266.

3. Where a Pennsylvania contract, styled a “lease,” states that the “lessor” thereby “leases” do the “lessee” a described automobile for a total rental price of $1280, that $512 of this amount has been paid in cash, and that the balance is to be paid in regular monthly installments of $96 each, bearing interest after maturity, and provides that the loss, injury, or destruction of the property shall not release the “lessee” from these payments, and that in ease of default in payment of any installment of “rent” the “lessor” shall have the right to retake the property and proceed against the “lessee” to collect the remaining unpaid installments, and that upon full payment by the “lessee” of the installments of rent reserved by the contract, the “lessee” shall redeliver the property to the “lessor,” and shall thereupon have the right to purchase the property within ten days for an additional consideration of $1, the “lessor” then to execute to the “lessee” a bill of sale for the property, and that pending performance by the “lessee” of the terms of the contract the title to the property is reserved to the “lessor,” the contract, in the absence of any Pennsylvania statute governing the same, will be construed in accordance with the rules of the common law as interpreted by the courts of this State, and must accordingly be held to be a contract of sale, with a reservation of title in the seller. This is true for the reason that the manifest intent and purpose of the parties is to effect a transfer of title to the so-called “lessee” on performance by him of the stipulations of the contract, including full payment of the purchase-price. See Hays v. Jordan, 85 Ga. 741 (2), 746 (11 S. E. 833, 9 L. R. A. 373); Cottrell v. Merchants & Mechanics Bank, 89 Ga. 508 (2) (15 S. E. 944); 24 R. C. L. 449, § 747; Colonial Hill Co. v. Greenoe, 35 Ga. App. 698, 702 (134 S. E. 633).

4. Where a contract which, under the rules of the governing common law, must be construed by the courts of this State as one of conditional sale is executed in another State, and the property is brought into this State, the reservation of title in the seller is not effective as against one who in good faith has here acquired title to the property without actual notice of such reservation, unless the contract was duly recorded as required by the Civil Code (1910), §§ 3259, 3319. Cunningham v. Cureton, 96 Ga. 489 (3) (23 S. E. 420); Cottrell v. Merchants & Mechanics Bank, supra; Olmstead v. Carolina-Portland Cement Co., 30 Ga. App. 126 (117 S. E. 255); Burgsteiner v. Street-Overland Co., 30 Ga. App. 140 (4), 143 (117 S. E. 268).

Decided May 22, 1928.

W. J. Davis Jr., Dillon, Calhoun & Dillon, for plaintiff.

M. Herzberg, for defendant.

5. In the instant case, the instrument under which the plaintiff in trover claimed title not having been recorded in compliance • with the foregoing provisions of law, and it appearing, without dispute, that the defendant in trover had acquired the property in good faith and without knowledge of such reservation-of-title contract, the judge of the superior court did not err in sustaining the certiorari from the judgment rendered against the defendant in the municipal court.

Judgment affirmed.

Stephens and Bell, JJ., concur.


author: Bell, J.

text:
    18424.
    Lovelace-Eubanks Lumber Company v. Brown.
   Bell, J.

B. E. Brown, the owner of certain realty, entered upon the following written agreement with J. P. Carlton: “We, B. E. Brown, party of the first part, sold to J. P. Carlton, party of the second part, the western side of pine thicket, supposed to be 100,000 more or less, at $5.50 per M. on the stump. Party of the second part to pay for lumber as soon as sawed, and before moving same. B. E. Brown party of the first part agrees to cut timber and log the mill at $3.00 per thousand.” Held:

1. While it lias been held that standing timber is to be regarded as realty (Moore v. Pickers, 126 Ga. 42, 64 S. E. 814), “a contract of sale in regard to timber which is attached to the soil, but which is presently to be severed therefrom and converted into personalty before the title is to pass to the purchaser, is an executory sale of personalty, and not of an interest in land.” Clarke v. McNatt, 132 Ga. 610 (3) (64 S. E. 795, 26 L. R. A. (N. S.) 585). Accordingly, the contract quoted is to be construed as an executory agreement whereby Brown agrees to surrender possession and title to the timber to Carlton upon its being converted into lumber by the latter and paid for at the agreed price per thousand feet. Possession not having been surrendered by Brown, the provisions of sections 3318 and 3319 of the Civil Code (1910), relative lo the record of conditional bills of sale of property sold and delivered, do not have application, and a purchaser from Carlton would not acquire a good title to the lumber as against Brown by reason of the fact that the contract set forth had not been recorded as required by the statutes indicated.

Decided May 22, 1928.

Clement E. Sutton, for plaintiff.

Colley & Wynne, W. A. Slaton, for defendant.

2. Where the owner of certain land and timber enters into a contract with another whereby the executory purchaser is obligated to convert the timber into lumber and pay for it at a named price per thousand feet as a condition precedent to his acquiring either possession or title thereto, the fact that the executory purchaser enters upon the premises and proceeds in the work of converting the timber into lumber does not clothe him with indicia of title such as, according to the custom of trade or common understanding, would import the right and authority to sell the lumber as against the rights and title of the true owner.

3. In accordance with the principles of law set forth above, a verdict in favor of the defendant owner of the premises in a contest over the title to the lumber was demanded, and the judge of the superior court did not err in granting a new trial.

Judgment affirmed.

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


text:
    18435.
    Stripling v. Crisp County Lumber Company.
   Jenkins, P. J.

1. A married woman having a separate estate may engage her husband to act as her agent in the transaction of any business she may have, and, if she does so, his acts as such agent stand, as to her and the world, as do the acts of any other agent. Wells v. Smith, 54 Ga. 262. But even if he purports to act as her agent, persons dealing with him are bound to inquire as to his authority so to act. Mickleberry v. O’Neal, 98 Ga. 42, 51 (25 S. E. 933). The mere fact that a wife may have received the benefit of goods bought by her husband on his own credit would not, whether he was solvent or insolvent, make her. liable in law to the seller for the price of such goods. Hightower v. Walker, 97 Ga. 748 (25 S. E. 386). Thus, where the wife is the owner of a tract of land upon which a house is erected out of materials furnished solely on the credit of her husband, she is not rendered liable for the value of such materials, unless it be made to appear that she was the concealed principal of her husband, and that the husband was in fact acting as her agent when he purchased the materials. Blount v. Dugger, 115 Ga. 109 (4 S. E. 235).

2. Where an agent dealing with another person acts for and on behalf of his principal without disclosing his agency, and in his individual capacity contracts for the benefit of the concealed principal, the other party may, on discovering the concealed agency, elect to hold either the principal or the agent under the terms of the agreement. While it 1ms been recognized that in cases of husband and wife, where all the consideration of a debt reaches the wife as an accession to her separate estate, slight evidence might bo sufficient to show that the husband in making the contract was in fact acting as the concealed agent of his wife (Akers v. Kirke, 91 Ga. 590, 18 S. E. 366), this principle could not have application so as to establish the fact of a concealed agency in a suit against the wife for a balance due on an account of which four fifths had been paid by the husband, where it appears that at the time the credit was extended to the husband upon an instrument in writing, signed by the husband in his individual capacity, and the goods as furnished were charged to the husband on the books of the plaintiff, the plaintiff was aware of every fact now urged as establishing a concealed agency, including the fact that the goods and materials furnished were going to the improvement of property owned by the wife.

Decided May 22, 1928.

G. L. Harris, for plaintiff in error. W. H. Dorris, contra.

3. In accordance with the foregoing principles of law, the verdict in favor of the plaintiff was altogether unauthorized by the evidence.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    18438.
    Anderson v. Georgia State Bank.
    Decided May 22, 1928.
   Jenkins, P. J.

1. Under the Civil Code (1910), § 6288, a second affidavit of illegality “shall not be received by any sheriff or other officer, for causes which existed and were known, or in the exercise of reasonable diligence might have been known at the time of filing the first.” Anderson v. Bank of Chatsworth, 22 Ga. App. 736 (97 S. E. 255). The fact that the first affidavit of illegality was dismissed by the defendant, or withdrawn, without a hearing thereon, does not make an exception to the rule stated. Bell v. Atlanta Telephone & Telegraph Co., 15 Ga. App. 680 (84 S. E. 163).

2. The affidavit of illegality in the instant case, which alleged that a former affidavit had been filed and withdrawn by the defendant, and which was based upon the alleged illegal rendition of the judgment upon which the plaintiff’s execution was based, was properly dismissed on demurrer, since the defendant must have had knowledge, at the time of filing the first affidavit, of the facts upon which the second affidavit was based, and no reason for the omission of such facts from the first affidavit was set forth in the second affidavit. See, in this connection, Hambrick v. Crawford, 55 Ga. 335 (2), 339; Hunter v. Davidson, 59 Ga. 261. Judgment affirmed.

Stephens and Bell, JJ., concur.

H. E. Anderson, for plaintiff in error. J. M. Sellers, contra.


text:
    18553.
    Fowler et al. v. Bank of Commerce.
    Decided May 22, 1928.

      Graham Wright, for plaintiffs in error.

      Wesley Shropshire, contra.
   Bell, J.

1. Where a suit is brought upon a promissory note obligating the maker to pay a certain per cent, of the principal and interest as attorney’s fees, and where the petition contains allegations showing that the plaintiff gave to the defendant the notice prescribed by the Civil Code (1910), § 4252, as a prerequisite to the recovery of such fees, the note is an unconditional contract in so far as it stipulates for the payment of principal and interest, but is a conditional contract in so far as it obligates the maker to pay attorney’s fees. Being conditional in part, the note is not “an unconditional contract in writing,” and even though the suit thereon should be in default, the case is not one in which the court, under section 5660 of the Civil Code, is authorized to render a judgment in favor of the plaintiff without a jury, as in undefended suits on unconditional contracts in writing. Where, in such a case, a judgment in favor of the plaintiff for principal, interest, and attorney’s fees is so rendered by the court without a jury, the portion of the judgment relating to attorney’s fees is illegal. Valdosta, Moultrie & Western R. Co. v. Citizens Bank of Valdosta, 14 Ga. App. 329 (80 S. E. 913); Deal v. Glenville Bank, 21 Ga. App. 619 (94 S. E. 835).

2. But where in such judgment the principal, interest, and attorney’s fees are stated in separate and distinct amounts, “the mere improper inclusion of the attorney’s fees will not have the effect of rendering the entire judgment void, but it may be purged of the attorney’s fees and allowed to stand for the principal, interest, and cost.” Wheeler v. Martin, 145 Ga. 164 (3) (88 S. E. 951). In the present case, the plaintiff having written from the judgment the amount included as attorney’s fees, the error therein was cured and the court then properly refused the defendant’s motion to set the judgment aside.

Judgment affirmed.

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


author: Pee Curiam. Luke, J.,

text:
    18625.
    NOLAN v. CALHOUN.
    Decided June 12, 1928.

      Adams, Adams & Douglas, for plaintiff in error.

      Mclntire, Walsh & Bernstein, contra.
   Pee Curiam.

This case is controlled by that of Gody v. Automobile Financing Inc., 37 Ga. App. 452 (140 S. E. 634) ; and tinder the rulings there made, the court in the instant case erred in admitting the evidence which directly contradicted the express provisions of the written contract. See also Hadden v. Williams, 37 Ga. App. 464 (140 S. E. 797).

Judgment reversed.

Broyles, G, J., and Bloodworth, J., concur. ■ Luhe, J., dissents.

Luke, J.,

dissenting. I do not question the soundness of the Gody case, upon which a majority of the court bases a reversal, but, in my opinion, the pleading and the facts of that case differentiate it from the case at bar. The defense urged there at last rests upon the subsequent promises of the seller to -adjust any difference as to the value, etc., of the car delivered. In the case at bar the defense was fraud in the procurement of the contract. My view of the case, and of the law applicable thereto, is hereinafter more fully expressed.

M. B. Calhoun negotiated with Claude Nolan, a dealer in Cadillac automobiles, for the purchase of a new car of that make. Nolan understood that Calhoun wanted a new automobile, and says he sold him one. Calhoun, on the other hand, says that he actually received a used ear, which had been repainted for the purpose of concealing the fact that it was an old one. The consideration for it was $500 cash, a second-hand automobile at a valuation of $1075, and Calhoun’s note for $2500. Calhoun tendered the automobile back to Nolan, and sought to recover said $500 cash payment, and $1075, the value of the car traded in by him. He also asked that his note be delivered up; but since the defendant offered in his answer to do this, the note was not an issue in the case. The jury rendered a verdict for the full, amount sought to be recovered, and Nolan excepted.

By its verdict the jury confirmed Calhoun’s contention that the automobile was an old one repainted to appear new, and there was evidence to sustain that finding. The controlling question in the case is whether, by reason of the terms of the contract under which the automobile was sold, Calhoun was precluded from showing the alleged fraud upon which this action was based. After stipulating for the sale of “One 63-F-Cadillac Coupé, Motor F-1959,” the contract provides as follows: “It is agreed that this instrument contains-the entire contract of the parties with reference to the property herein described, and that vendor makes no representations, statements, or warranties whatsoever, expressed or implied, either in fact or in law, as to any quality or attribute whatsoever of any of said property, except that said vendor warrants that he has title to said property and that the same is free from encumbrance.”

“Fraud voids all contracts.” Civil Code (1910), § 4254. “Fraud may exist from misrepresentation by either party, made with design to deceive, or which does actually deceive the other party; and in the latter case such misrepresentation voids the sale, though the party making it was not aware that his statement was false. Such misrepresentation may be perpetrated by acts as well as words, and by artifices designed to mislead. A misrepresentation not acted on is not ground for annulling a contract.” Civil Code (1910), § 4113. “Concealment of material facts may in itself amount to fraud. . . 3. Where one party knows that the other is laboring under a delusion with respect to the property sold or the condition of the other party, and yet keeps silent.” “When a vendee of personal property makes a material representation which is false, and upon which the vendor is induced to' act to his injury by parting with possession of his goods, such a misrepresentation amounts to a fraud in law, which voids the sale, and equity may rescind the contract and restore the parties to their original rights, although the party making such misrepresentation was not aware that his statement was false.” Newman v. Claflin Co., 107 Ga. 89 (32 S. E. 943). See also Bailey v. Jones, 14 Ga. 384 (4).

Aside from the written contract involved in the ease at bar, it very closely resembles the case of Snellgrove v. Dinglehoef, 25 Ga. App. 334 (103 S. E. 418). In that case the plaintiff sought to rescind a contract for fraud because he negotiated for a new automobile, and the automobile delivered to him was a second-hand one worked over to resemble a new one. The first lieadnote of the case reads: “An executed sale may be rescinded on account of actual fraud; and, since fraud voids all contracts, no title to the property passes tinder such. sale. Also, under a contract of sale where the property actually delivered is materially different from that contracted for, its acceptance by the buyer in ignorance of such material difference constitutes no sale, and no title passes. In either case the buyer may, upon the discovery of the fraud, rescind the contract of sale, and, upon making or offering restitution, recover from the seller the purchase-money which has been paid to the seller.”

The case last cited, and the prior citations, are authority for the conclusion that the facts relied on by Calhoun to show fraud sufficient to void the contract would ordinarily be ample for that purpose. But how stands the case in the light of the sales contract? The plaintiff in error says that under the Civil Code (1910), § 4268, “parol evidence is inadmissible to add to, take from, or vary a written contract,” and that all the testimony tending to show that the automobile was an old one, disguised to look like new, was inconsistent with and varied the terms of the sale contract. “There is a wide difference between varying the terms of the written contract by parol or other extrinsic evidence, and showing by parol or other extrinsic evidence that a contract never existed, because of fraudulent representations, arts, or devices by which it is induced. The parol evidence in the latter case does not alter, vary or contradict the contract, but absolutely destroys it. Williams v. Moore-Gaunt Co., 3 Ga. App. 756 (60 S. E. 372). The fraud may consist in a misrepresentation of the thing which is the subject-matter of the contract; especially is this true where there is nothing in the terms of the contract which actually contradicts the facts about which the misrepresentation is alleged to have been made. Janes v. Mercer University, 17 Ga. 515; Epps v. Waring, 93 Ga. 765 (20 S. E. 645); Barrie v. Miller, 104 Ga. 312 (30 S. E. 840, 69 Am. St. R. 171).” State Historical Asso. v. Silverman, 6 Ga. App. 560 (65 S. E. 293). “Where a contract is procured by fraud, parol evidence is admissible to prove the fraud, and if the fraud be proved, the jury would be authorized to set aside the contract. The purpose of such evidence is not to add to, take from, or vary the terms of a valid written agreement, but to show that the contract was originally void because of the fraud perpetrated upon the complaining party.” Hixon v. Hinkle, 156 Ga. 341 (3) (118 S. E. 874). In Mizell Live Stock Co. v. Banks, 10 Ga. App. 362 (2) (73 S. E. 410), it was held: “The rule that parol testimony shall not be received to change or add to the terms of a written contract does not apply where the alleged contract was procured by fraud. In such ease the contract is not binding upon the party defrauded, and may be rescinded at his instance.” See also Edenfield v. Coleman, 10 Ga. App. 355 (73 S. E. 424). Both of the cases last cited involve fraud in the sale of live stock. See also Barrie v. Miller, 104 Ga. 312 (supra), which dealt with an alleged fraudulent sale of books. In the case of Beasley v. Huyett & Smith Mfg. Co., 92 Ga. 273 (18 S. E. 420), where a plea of fraud in concealing defects in machinery was set up, Chief Justice Bleckley said: “Those who commit actual fraud can not protect themselves against answering therefor by any form of warranty or any limitations which they may introduce in the terms of the warranty. Fraud in the principal contract, the contract of sale, is not to be answered by setting up a collateral contract which was as much the offspring of the fraud as was the principal contract itself.” In the case of Floyd v. Woods, 110 Ga. 850 (36 S. E. 225), the defendant pleaded that a note and mortgage were given for a buggy “which plaintiff falsely represented to be new, whereas it was an old buggy fixed over and almost worthless.” The justice of the peace who tried the case struck the plea, and the judge of the superior court held that he erred in so doing. The Supreme Court reversed the judgment of the superior court, and held that the plea was precluded by the sale contract, which contained the following stipulation: “It is expressly understood and agreed that the property for which this note is given is sold without any warranty, expressed or implied, on the part of the seller, and the purchaser buys said property entirely upon his own judgment, waiving all defects, either patent or latent. The purchaser waives the implied warranty upon the part of the seller . . , and agrees not to plead failure of consideration or any other plea to an action that may be founded upon this note.” This is a strong case, but its facts differentiate it from the case at bar, and I do not think that the ruling made should be extended to cover the case sub judice.

In short, I think that, since Calhoun was negotiating for a new automobile, and Nolan was selling one, it would be going a long way to hold that Nolan could deliver a used automobile repainted and made to look like new, and then defend by anything contained in the sale contract. There is nothing in the contract that could be construed as meaning that something different and less valuable could be substituted for the thing the seller was selling and the purchaser buying. The warranty clause in the contract was applicable to the subject-matter of the sale, to wit a new automobile, not an old one. The writing does not state whether a new or a used automobile was sold. The contract was not varied or contradicted by parol evidence. It was originally void because of fraud perpetrated upon the complaining party.

Some of the assignments of error are elaborations of the general grounds of the motion for a new trial. The others, having reference to the introduction of evidence 'and to the charge of the court, invoke the parol-evidence rule, and, in my opinion, are controlled adversely to the contentions of plaintiff in error for the reason stated above. I see no reversible error in the record, and am of the opinion that the court properly overruled the motion for a new trial.


author: Bloodworth, J.

text:
    18679.
    Blalock et al. v. The State.
    Decided June 12, 1928.

      W. B. Hollingsworth, F. A. Bams, Little, Powell, Smith & Gold-stein, Alexander, Hardwick & McLaHy, J. H. Longino, for plaintiffs in error.

      F. M. Owen, solicitor-general, contra.
   Bloodworth, J.

Questions certified by tbis court to tbe Supreme Court were answered by that court as follows: “Deposits of the public funds of the county of Eayette, in the Bank of Eayetteville, as ‘the depository and disbursing agent ’ of said funds under the act of 1915 (Acts 1915, p. 233), creating a depository and disbursing agent of the public funds of the county, were general deposits, title to which became vested in such bank upon being deposited; and neither the depository nor its officers can be indicted for embezzlement of such funds as the property of the county.”

Under the foregoing ruling the judge of the superior court erred in overruling the general demurrer to the indictment.

Judgment reversed.

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


author: Per Curiam.

text:
    18799, 18856.
    WOMACK v. TIDWELL, receiver; and vice versa.

    Decided June 12, 1928.

      Hendrix & Buchanan, for Mrs. Womack.

      W. 8. Northcutt, contra.
   Per Curiam.

(After stating the foregoing facts.) The receiver, plaintiff in error in the cross-bill, cites the case of Sproull v. Seay, 76 Ga. 27 (2), as authority for the proposition that “the measure of the first bidder’s liability was fixed at the difference between his bid and what the property brought at the final sale.” The language quoted would indeéd be conclusive authority if jaken alone; but a previous decision of the court on the same case, and the first headnote of the decision from which the quotation is taken, show that the above holding was based on the particular facts of the Spi'oull case; and other decisions of the Supreme Court show that an administrator can not recover the difference between the first bid and the final sale, regardless of any amount that might have been recovered from an intermediate bidder. The first headnote in the Sproull case, supra, states that “When this case was here at the last term on substantially the same facts as are now brought up, this court held that it was error to award a nonsuit; that an administrator can recover from a bidder at his sale, who fails to comply with his bid, the difference between the amount bid and what the land subsequently sold for; that if the second sale be delayed at the instance of the bidder, this delay will not relieve .him; and that, if the second bidder does not comply with his bid, and the property is sold a third time, and the last sale is delayed at the instance of the first bidder, he will still be liable for the difference between what the property brought at the last sale and the amount of his bid at the first sale.” (Italics ours.) And by reference to the case in 74 Ga. 676, we find that the amount recoverable' is the difference between the amount of the first bid “and that which the land subsequently sold for, when again offered,” and that all the delays were “at the instance of the first bidder,” and that the second bidder was only “the agent to bid for the first bidder, there being evidence that the first bidder was managing the entire transaction and importuning the administrator to wait on him to pay for the land.” (Italics ours.) The fact that the first bidder was managing the entire transaction and was responsible for the delays fully justifies his being held liable for the ¿difference between the first and last bids. There is a distinction between the expression “subsequently sold for” and the expression “brought at the final sale,” but the court evidently meant the amount subsequently received for the property. In the Sproull case the only amount subsequently received came from the final bidder, but in the case under consideration there were intermediate bidders, or at least one, from whom a recovery could be had. Under no principle of law could the receiver recover more than he has lost. The statute (Civil Code, § 6071) provides that the administrator or other officer may “proceed against the first purchaser for the deficiency arising from such sale (italics ours)”, and it makes no provision for recovering more than the deficiency. It also makes the same measure of liability apply to all bidders, to subsequent bidders as well as the first bidder, as it provides that “any person” who fails to comply with his bid shall be liable. If subsequent bidders were not liable on their bids, they could bid promiscuously and recklessly, with the assurance of no responsibility therefor. If a subsequent bidder is insolvent, or if it is established that a recovery from him on his bid can not be had, then the risk of the preceding bidder is to that extent increased. Numerous decisions of the Supreme Court and of this court, to the effect that the bidder takes the “risk” when he refuses to comply with his bid and lets the property be sold again, mean that he takes the chance of the property bringing more or less than he bid, thus eliminating or increasing his liability. In the case of Gay v. Parish, 138 Ga. 399, 401 (75 S. E. 323), the court held that the officer had a right “to resell the property and hold the bidder liable for the difference between his bid and what the property brings at the second sale, if a less amount.” (Italics ours.) In Roberts v. Smith, 137 Ga. 30 (2) (72 S. E. 410), it was held that “In case a purchaser at an administrator’s sale refuses to comply with his bid, where the administrator elects to resell the land at the purchaser’s rislc, he should do so at the earliest practicable time.” (Italics ours.) And in Alexander v. Herring, 54 Ga. 200 (2), the Supreme Court said: “The measure of damages in a suit by an administrator, against a purchaser at his sale, for the deficiency ’ in the amount of the second sale, is what must be added to the amount of the second sale, to put the administrator in the same position as if the defendant had fully complied with his bid.” (Italics ours.) The record in the case under consideration shows that the plaintiff received $3650 from the final purchaser, and collected $200 from Mrs. Eudolf because of her failure to comply with her bid; and if he is allowed to collect $1200 from Mrs. Womack, the defendant, as claimed in the 9th and 10th paragraphs of the petition, he will have recovered $5050, which is more than any one ever bid on the property. The record further shows that the receiver already has an order of the court authorizing him to bring suit against Miss Stewart on her bid made subsequently to that of the defendant, and that there were still other bids between the first and last bids on the property. A recovery on each of these for the full amount of the difference between their bid and the final purchase-price would result in the property bringing an amount far in excess of any bid and far in excess of the loss sustained by the receiver by reason of their failure to comply with their bids, which would be manifestly inequitable. We think the court properly sustained the 6th paragraph of the defendant’s demurrer and struck the 9th and 10th paragraphs of the petition, thus limiting the receiver’s possible recovery to the difference between the first bid and the “next bid.”

On the main bill of exceptions it is necessary to discuss only the general grounds of the motion for a new trial. In order for the receiver to recover from Mrs. Womack on a bid it was of course necessary for him to show that shé made such bid or authorized some one to do so for her. It is undisputed that J. L. Womack, husband of the defendant, submitted a bid in his wife’s name; and it is undisputed that J. L. Womack was manager of a business owned by his wife; but the evidence shows that the bid was not made in the name of the business which the husband managed, but was made in the name of his wife individually. Furthermore, the receiver produced no evidence that this business was the purchase or sale of real estate, or that the husband as manager of the business was authorized to buy real estate, or that Mrs. Womack had authorized him to bid on this property for her, or that she had ratified his bid, or that she herself bid on the property. On the contrary, the evidence shows that the business of which the husband was manager was not engaged in buying and selling real estate, but in furnishing building material, and that it had never bought any real estate, and that Mrs. Womack did not bid on this property, or authorize her husband to bid on it for. her, or ratify her husband’s bid. The record shows that Mrs. Womack consistently refused to have anything to do with the transaction until she was forced into court to answer this suit. The husband’s act in making the bid in his wife’s name was an ultra vires act and was not binding on the defendant. The burden being on the receiver to show that the defendant made the bid, or authorized it, or ratified it, and the receiver having failed to carry this burden, the verdict and judgment against Mrs. Womack for $350 is without evidence to support it, and the court therefore erred in overruling her motion for a new trial.

Judgment on main hill of exceptions reversed.

Broyles, C. J., and Lulce and Bloodworth, JJ., concur. Judgment on cross-hill affirmed. Broyles, G. J., and Lulce, J., concur. Bloodworth, J., dissents.


text:
    18858.
    Cunningham v. The State.
   Bloodworth, J.

1. Tlie only assignment of error in the bill of exceptions is upon the overruling of the motion for a new trial, and therefore this court can not consider the alleged error in overruling the demurrer to the indictment, although exceptions pendente lite were filed, designated in the bill of exceptions as “material to a clear understanding of the errors complained of,” and sent to this court as a part of the record. House v. American Discount Co., 31 Ga. App. 396 (120 S. E. 701).

Decided June 12, 1928.

Taylor Smith, for plaintiff in error.

S. W. Bagsdale, solicitor-general, contra.

2. “A ruling on a demurrer can not properly be made a ground of a motion for a new trial. Park’s Penal Code, § 1096, annotations under catchword ‘Demurrer.’” Quattlebaum v. State, 32 Ga. App. 68 (122 S. E. 637).

3. Error is alleged on the refusal of the court to declare a mistrial because a witness testified, “We had a lot of reports on Mr. Cunningham.” Each ground of a motion for a new trial must be complete and understandable within itself. This court is not able to tell what was the character of these reports and whether or not the admission of this evidence was harmful to the cause of the accused; hence this court can not say that the trial judge erred in refusing to declare a mistrial because of the admission of this evidence.

4. Special ground 4 of the motion for a new trial alleges that the court erred in refusing to declare a mistrial because of a certain statement made by the solicitor-general in his argument to the jury. In view of the note of the trial judge qualifying this ground and what he said relative to this incident in his instructions to the jury, this ground is without merit.

5. There is some evidence to support the verdict.

Judgment affirmed.

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


author: Broyles, O. J.

text:
    18859.
    Lane v. The State.
    Decided June 12, 1928.

      Jere M. Moore, for plaintiff in error.

      Jule Felton, solicitor-general, contra.
   Broyles, O. J.

The evidence authorized the verdict, and the special grounds of the motion for a new trial show no cause for a reversal of the judgment.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    18861.
    Jones et al. v. Roberts Brothers Incorporated.
    Decided June 12, 1928.

      8. M. Mathews, Homer Beeland, for plaintiffs.

      O. L. Shepard, for defendant.
   Broyles, C. J.

1. The excerpts from the ehai-ge of the court, complained of in the motion for a new trial, when considered in the light of the entire charge and the facts of the case, show no harmful error.

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

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    18864.
    Ashley v. The State.
    Decided June 12, 1928.
    ¿7. L. Stephens, T. E. Hightower, for plaintiff in error.

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

The jury were warranted in concluding from the evidence that the defendant, without sufficient provocation, struck John Rowland hard enough with-a heavy hoe to produce a fracture at the base of his skull. The evidence abundantly supports the verdict of assault and battery, and the court properly overruled the motion for a new trial, based solely upon the general grounds.

Judgment affirmed.

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


text:
    18865.
    Davis v. The State.
    Decided June 12, 1928.

      J. A. Merritt, for plaintiff in error.

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

1. Under the facts of this case, and in the light of the entire charge of the court, the excerpts from the charge of which complaint is made in the motion for a new trial contain no error that requires the grant of a new trial.

2. There is ample evidence to support the verdict of guilty.

Judgment affitrmed.

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


text:
    18866.
    Russom v. The State.
    Decided June 12, 1928.

      J. H. Dorsey, for plaintiff in error.

      T. Hoyt Davis, solicitor-general, contra.
   Broyles, C. J.

The verdict was authorized by the evidence, and the denial of the motion for a new trial, based upon the usual general grounds, was not error.

Judgment affirmed.

Luhe and Bloodworth, JJ., concur.


text:
    18867.
    Louisville & Nashville Railroad Co. v. Dobbs.
   Broyles, C. J.

1. “In an action for damages by an employee against his employer, under the general law of master and servant as existing in this State, based upon an injury resulting from a latent defect in machinery with which the plaintiff is employed to work, if the petition fails to allege in express terms that the master knew, or by the exercise of ordinary care could have known, of the defect, and failed to warn the servant thereof, and fails to allege that the servant did not have equal means with the master of knowing of the defect, the petition will not be subject to general demurrer on the ground of the absence of such allegations, if it contains other allegations which in substance import such knowledge upon the part of the master and unequal means on the part of the servant of knowing the defect. Properly construed, the allegations of the petition were such as in effect to import knowledge as just stated; and it was not error at the trial term to overrule the motion to dismiss the petition.” Lawrenceville Oil Mill v. Walton, 143 Ga. 259 (84 S. E. 584).

2. “Assumption of risk, being contractual, implies choice and freedom of • consent. Before choice can be implied, there must be an opportunity to choose. Where the allegations of the petition show that the plaintiff was placed in a dangerous emergency by a sudden negligent act of his master, and was injured, it will not be adjudged, on demurrer, that he assumed the risk of continuing to work in the face of this increased hazard, when it appears that the injury followed so quickly upon the negligent act that he did not have a fair opportunity of reasonably exercising any choice in the matter.” Brown v. Rome Machine & Foundry Co., 5 Ga. App. 142 (5) (62 S. E. 720).

3 The allegations of the petition in the instant ease, with the legal inferences and deductions arising therefrom, sufficiently disclosed the plaintiff’s position relative to the rail (which he and other employees of the defendant were moving at the time of the injury sued for) and the other employees of the defendant at the time the rail was moved. In Louisville & Nashville Railroad Co. v. Reece, 136 Ga. 394 (71 S. E. 675), the petition, while not set forth, was evidently much more defective than the instant one. See the criticism of the petition in the Reeee case, in the opinion written by Mr. Justice Beck.

Decided June 12, 1928.

Tye & Tye, Morris, Hawkins & Wallace, for plaintiff in error.

Hewlett & Dennis, Bindley W. Camp, contra.

4. Under the above-stated rulings and the facts of the instant ease the court did not err in overruling the general demurrer to the petition or any of the special demurrers, except the .one hereafter mentioned.

5. Paragraph 20 of the first count, and paragraph 18 of the second count, of the petition were subject to the special demurrers interposed, and the overruling of those demurrers was error. See, in this connection, Louisville & Nashville Railroad Co. v. Barnwell, 131 Ga. 791 (4) (63 S. E. 501), and cit.

Judgment reversed.

Luke and Bloodworth, JJ., eonour.


text:
    18870.
    Dooley v. Philadelphia Fire & Marine Insurance Co.
    Decided June 12, 1928.
    Rehearing denied July 10, 1928.

      Boyd Sloan, for plaintiff in error.

      Underwood, Haas & Gambrell, B. Emerson Gardner, contra.
   Bloodworth, J.

1. Special grounds 1 and 2 of the motion for a new trial are but amplifications of the general grounds.

2. “An exception to the refusal to grant a nonsuit will not be considered, where a verdict for the plaintiff is complained of as not supported by evidence.” Swope v. McKenney, 36 Ga. App. 168. This ruling disposes of the 3d ground of the amendment to the motion.

3. There is no error in the excerpt from the charge of which complaint is made in the 4th special ground of the motion.

4. There is ample evidence to support the verdict.

Judgment affirmed.

Broyles, C. J., and Luke, J., eoneur.


text:
    18871.
    Drake v. Adair Realty & Loan Company.
   Broyles, C. J.

“L Where property has been listed for sale with two or more real-estate brokers, and one of them, with the knowledge of the owner, has interested a customer in the purchase, and, while negotiations with the broker are still pending, the owner proceeds to close the sale with the same customer through another broker, the latter being the first to present the customer as ready, able, and willing to buy, and actually offering to buy, at the price and on the terms stipulated by the owner; and where the owner, pending such negotiations, has committed no act of bad faith, the efforts of the broker thus actually closing the trade can not be regarded, as a matter of law, as the procuring cause of the sale, so as to exclude the claim of the other broker against the owner for commissions.” Gresham v. Lee, 152 Ga. 829 (111 S. E. 404).

Decided June 12, 1928.

Little, Powell, Smith & Goldstein, for plaintiff in error.

Troutman & Troutman, contra.

“2. In such a case the owner must proceed at his peril, in effecting the sale and paying the commissions to the broker thus closing the sale.” Gresham v. Lee, supra.

3. In the instant case the only issue of fact was whether the negotiations with the broker representing the Adair Realty & Loan Company were still pending when the owner of the property in question sold it through another real estate broker; and the evidence authorized a finding in favor of the Adair Company.

4. Under the above-stated rulings the refusal of the judge of the superior court to sanction the certiorari was not error.

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

Judgment affirmed.

Luloe and Bloodworth, JJ., concur.


text:
    18881.
    MASSACHUSETTS COTTON MILLS et al. v. BYRD.
    Decided June 12, 1928.

      Willingham, Wright & Covington, for plaintiff in error.

      Porter & Mebane, contra.
   Luke, J.

J. W. Byrd sued Massachusetts Cotton Mills and John Griffin for damages because of tbe alleged negligence of Griffin in driving an automobile into the automobile of the plaintiff. The jury found for the plaintiff, the defendants’ motion for a new trial was overruled, and they excepted.

Though sharply conflicting, the evidence warranted the jury in finding that the collision was the result of Griffin’s negligence; and, there being no special assignment of error, the only question for determination is whether or not Massachusetts Cotton Mills was liable for the acts of Griffin.

R. M. Gibbons testified that he was working for Massachusetts Cotton Mills as overseer of its yard at the time the collision occurred; that he had authority to hire and discharge labor, but not to hire automobiles, since the company had its automobiles and drivers; that the work was light in the yard and he sent Griffin out to the farm to work, but did not tell him to take his car there, and did not know that he was going to use it; that Jack Woodruff, who was foreman under the charge of the witness, came to him to get hands, and he consented for him to get John Griffin and others; that when he turned over hands to Woodruff he put them under his control, whatever he said was right; and that on the afternoon in question “they were under Jack’s control and direction.” After swearing that at the time of the collision he was in the employ of Massachusetts Cotton Mills, but had no authority to hire or rent automobiles for the company, Jack Woodruff testified as follows; “I know John Griffin. At the time of the collision he was working under me. I was with John in his car at the time of the collision. . . As to why I happened to be using Griffin’s car at that time, we had caught up with the outside work, and we had lots of potato slips to set out, and Mr. Gibbons gave me some men to go to the potato patch and set out some slips, ami T didn’t have enough slips to set out till night, and Griffin had come to work in his car, and I asked Griffin if he minded taking his car and going up to the barn with me to get some potato slips, and he said, ‘No,’ and we got in his car and went and got the potato slips, and were coming back to the patch when we met Mr. Byrd in front of the mill office. . . This potato patch was between Lindale and Boozeville, that was the farm, being a part of the business carried on by the Massachusetts Mills, a part of its business down there. . . Those plants belonged to the Massachusetts Mills, and were being transported from tlie hot-beds to the fields for the purpose of being planted by me as sub-foreman of the Massachusetts Mills. The method that I used for transportation was just this car, in order to hurry and get through before night.” John Griffin testified: “I was working for the Massachusetts Cotton Mills, . . was hauling potato slips for the company. . . Mr. Jack Woodruff was looking after the potato-slip business. He sent me after the slips. . . I had been trucking cotton that morning up till dinner time. After dinner I helped set out potato slips. Mr. Bob Gibbons, got me to do that, —quit trucking cotton and go and look after the potato slips. I went out to the barn of the Massachusetts Mills Company. I was driving my car, driving for them at the time, and on the way back was when the accident happened. Mr. Woodruff told me to get the ear and go and get the potato slips. He went with me. . . The company did not have the car Hired in any way. How I happened to be using the car at the time, I was working for the company and setting out potato slips, and they gave out, and sent me to get some. Mr. Jack Woodruff was with me in the car.”

“Omitting the fellow-servant doctrine, the general rule is that the master is liable for the tort of his servant, whether negligent or voluntary, if done by his command or in the prosecution and scope of his business. Civil Code, § 4413. The expressions‘in the scope of his business,’ or ‘in the scope of his employment,’ or similar words, have sometimes been given too narrow a meaning. A master rarely commands a servant to be negligent, or employs him with the expectation that he will commit a negligent or wilful tort; but if the act is done in the prosecution of the master’s business, that is, if the servant is at the time engaged in serving the master, the latter will be liable. Savannah Electric Co. v. Wheeler, 128 Ga. 550, 553 et seq. (58 S. E. 38, 10 L. R. A. (N. S.) 1176). But for a tort committed by the servant entirely disconnected from the service or business of the master, the latter is not responsible under the doctrine of respondeat superior, although it may occur during the general term of the servant’s employment.” Fielder v. Davison, 139 Ga. 509, 511 (77 S. E. 618), 2 Blashfield’s Cyclopedia of Automobile Law, 1384, lays down the law as follows: “The true test of whether or not a servant is acting within the scope of his employment is whether the servant, at the time of the injury complained of, is performing a service for the master in furtherance of the master’s business, not the method of its performance, nor whether it is done in exact observance of detail proscribed by the employer.”

Applying the law to the facts of this case, we are of the opinion that the servant’s tort was committed in the prosecution and within the scope of the master’s business, and that the court correctly overruled the motion for a new trial.

Judgment affirmed.

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


text:
    18882.
    Ellington v. The State.
    Decided June 12, 1928.

      James W. Arnold, for plaintiff in error.

      Henry H. West, solicitor-general, contra.
   Luke, J.

There was sufficient evidence to authorize the verdict of shooting at another not in his own defense; and the exceptions to the charge of the court, when the charge is read in its entirety, show no reversible error.

Judgment affirmed.

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


text:
    18885.
    STIPE v. WILLINGHAM.
    Decided June 12, 1928.

      M. Kunz, M. Felton Hatcher, for plaintiff in error.

      ■Duncan & Nunn, contra.
   Luke, J.

0. B. Willingham brought an action in trover and bail against H. N. Stipe and T. M. Sizemore, and procured a verdict against Stipe alone for $137.95. The court overruled Stipe’s motion for a new trial, based upon the general grounds and upon other grounds herein indicated, and he excepted.

The main question presented by the record arises out of a dispute as to whether or not all, or any, or only a portion of certain trees alleged to have been cut by Sizemore, was located on the land of Willingham or on the adjoining land of Stipe; it appearing that Stipe sold some timber to Sizemore, and that the latter cut and carried away some timber from a location near the dividing line of the land of Willingham and Stipe.

1. A careful reading of the record satisfied us that the evidence supports the verdict, and that the court did not err in overruling the general grounds of the motion for a new trial.

2. The trover action is in the usual form, and clearly the general demurrer to the petition is without merit.

3. It is insisted by demurrer that the logs sought to be recovered were not described in the petition with sufficient particularity and definiteness. The description follows: “Two hundred and eleven logs of hardwood timber containing 34,489 feet of timber. Said logs being cut and removed by the said II. N. Stipe and T. M. Size-more from lots of land Nos. 4 and 39 in the 12th dist. of Houston county, Georgia, during the months of December, 1926, and January, 1927. The land from which said logs were cut and removed being the property of petitioner at the time same were cut and removed, and being a part of the land formerly known as the' ‘ Bivin’s Place,’ and now owned by petitioner.” We are of the opinion that the description -is sufficient to withstand the demurrer. • See, in this connection, Leitner v. Strickland, 89 Ga. 363 (15 S. E. 469), which reads as follows: “In an action of trover for the recovery of timber and logs, a description in the declaration in the following terms is sufficiently certain: ‘That hewn timber and those round logs which were cut from the land of petitioner and from the land of A. D. Cone by one B. J. Reese, and were by said Reese left and deposited in the waters of the great Ogeechee river at a point not far from the bridge of the Macon & Atlantic Railroad, and being that timber and logs referred to in the contract between petitioner and said Reese, dated on the 15th day of April, 1891, and recorded in Book L, folio 169, in the office of the clerk of the superior court of Bulloch county, said State, July 7, 1891, to which logs and timber petitioner claims title.’ ”• See also Pepper v. James, 7 Ga. App. 518 (67 S. E. 218); Redd v. Lathem, 28 Ga. App. 64 (110 S. E. 322).

4. The excerpt from the charge of the court set out in ground 4 of the motion for a new trial undertakes to state the conditions under which a recovery might be had. This excerpt is not erroneous for the reason that the evidence did not justify the charge, or because it failed to show that “the logs were in the possession of Stipe,” or because it failed to show that “the logs were in possession of defendants at the time suit was instituted.” The insistence that the court failed to charge here, or elsewhere, the contentions of plaintiff in error is without merit.

5. Error is alleged in the following excerpt from the charge of the court: “Now you will find out in this case whether or not the defendants were in possession of the logs that they are alleged to have been in possession of. I charge you that if they handled the logs, if they took them off the land, if they were both instrumental in possessing the logs, and took them from the land of Mr. Willingham, they are liable.” The criticism that the language of the court here was “too broad,” in that the jury were instructed that “any possession of the logs” would make defendants liable, is of no force when the charge is considered as a whole. The charge clearly indicates that the logs alleged to have been taken off of plaintiff’s land wére referred to. Nor did the excerpt deprive either of the defendants of the force of any testimony introduced by them.

6. It is alleged that the court erred in charging that if Stipe authorized Sizemore to cut and remove the logs for a consideration, Stipe would be liable to the true owner of the logs for damages, for the reason that the charge deprived the* defendant of the right of having the jury consider “the amount of the timber,” and limited the jury to a consideration of only plaintiff’s side of the case. This ground is not meritorious.

7. It is insisted that the court erred in instructing the jury that if Stipe did not authorize Sizemore to take the logs, and had nothing to do with the handling or removing of them, and received no compensation from them, he would not be liable. The contentions that this charge prevented the jury from considering whether or not only a portion of the logs were taken, and that the court should have told the jury that if they found only a portion of the logs were taken by Stipe, a recovery could be had only for the logs taken, are without merit. If fuller instructions were desired, they should have been requested.

8. In ground 8 this excerpt is criticised: “If you find in favor of plaintiff that these defendants took possession of the timber and converted it into logs, and used the logs, or made way with them, or failed to produce them upon demand, why then you would find out what the logs were worth. The rule is that the plaintiff is entitled to recover the highest proven value as shown to have been from the evidence.” Error is alleged here because the trial judge failed to submit to the jury the issue as to the number of logs taken by the defendants, or cut by the defendant, “and whether cut by others, from the land of the plaintiff, which issue was a material one upon which defendants were entitled to have the jury instructed.” This exception points out no reversible error. If more detailed instructions were desired, they should have been requested.

9. Special exception 9 is to the charge that if the land line had been fixed between the land of Stipe and that of Willingham by a judgment of court, that would be the true line, and that the logs belonged to the owner of the land from which they came. This excerpt was not erroneous for the alleged reason that there was an issue as to where the logs came from and who cut them.

10. The following excerpt from the charge of the court is complained of: “These are the points of law involved in this case. You believe such witness, or witnesses, as you think best entitled to belief where there is an issue of fact, and you find out from an honest consideration of the evidence the truth of the case, and whether or not the plaintiff is entitled to recover, whether the logs were his, and what those logs were worth, and what was the proper measurement of those logs. You have evidence before you as to that proposition, and that is a matter entirely for the jury.” The criticisms in this ground are: (a) The contentions were not charged negatively and affirmatively; (b) the charge unduly emphasized the plaintiff’s side of the case and prevented a fair consideration by the jury of the defenses arising under the evidence; (c) the charge entirely left out the contentions of the defendants; (d) the court intimated and expressed an opinion as to what had been proved. The court expressed no opinion as to what had been proved, and the other criticisms are without merit. If fuller instructions as to the issues were desired, they should have been requested.

11. The next exception is to this excerpt from the charge: “If you believe the plaintiff is not entitled to recover in this case, because you do not think the case is made out by a preponderance of evidence, the form of your verdict would be, ‘¥e, the jury, find in favor of the defendants.’ ” It is contended that this charge denied the defendant the right to have the jury consider the defenses presented by the evidence, and amounted to “declaring a verdict for plaintiff.” This exception presents no reversible error, especially in the light of the fact that there was no request to charge made during the trial of the ease.

The last exception is to the entire charge, on the grounds that it nowhere presented to the jury “any defense urged and proved by the defendant;” that it intimated to the jury the court’s belief in the plaintiff’s right to recover; that it was argumentative, and impressed upon the jury too strongly the contentions of the plaintiff, “with no corresponding charge upon the points and contentions insisted upon by the defendant.” This exception shows no reversible error.

Since the burden of most of the exceptions is that the court failed to charge properly the contentions of the parties, it may not be amiss to say that, this being a trover action and the pleadings being in the usual form, the various issues referred to were not presented by the pleading. Furthermore, the charge when considered as a whole is quite different from the charge when cut up into pieces and criticised piece by piece. The following ruling in the case of McLean v. Mann, 148 Ga. 114 (2) (95 S. E. 985), is pertinent: “Where in a civil case the judge, in stating the contentions of the parties, fully and fairly submitted the issues raised by the pleadings in the case, the failure of the court, in the absence of a request, to instruct the jury upon a contention of one of the parties not raised by the pleadings, although supported by some evidence in the record, is not cause for a new trial. Martin v. Nichols, 127 Ga. 705 (56 S. E. 995); Cordele Sash Co. v. Wilson Lumber Co., 129 Ga. 290 (2) (58 S. E. 860); Hewett v. Lamb, 130 Ga. 709 (2) (61 S. E. 716, 14 Ann. Cas. 800).” See also Jackson v. Butts, 148 Ga. 312 (96 S. E. 630).

For no reason assigned did the court commit reversible error, and the judgment overruling the motion for a new trial will not be disturbed.

Judgment affirmed.

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


author: Bloodwokth, J.

text:
    18886.
    City of Thomasville v. Campbell.
    Decided June 12, 1928.
   Bloodwokth, J.

1. The petition set out a cause of action, and as far as the ruling was adverse to the plaintiff in error the court did not err in passing the following order: “The special demurrer to paragraph 9 of plaintiff’s petition as set out in ground 4 of defendant’s demurrer is sustained; all other grounds of the demurrer, including the general demurrer, are overruled.” The facts in Brooks v. City of Atlanta, 1 Ga. App. 678 (57 S. E. 1081), are somewhat analogous to those in this case, and the principle announced in the decision in that case is controlling in this. See William Bensel Construction Co. v. Homer, 2 Ga. App. 369, 372 (58 S. E. 489).

2. The evidence is sufficient to support the verdict.

Judgment affirmed.

Broyles, C. J., concurs. Luke, J., dissents.

P. G. Andrews, Titus & Delete, for plaintiff in error,

cited: 158 Ga. 792; 65 Ga. 378; 72 Ga. 420; 145 Ga. 339; 120 Ga. 785, 980; 35 Ga. App. 484; 31 Ga. App. 402; 21 Ga. App. 172; 10 Ga. App. 709; 123 Ga. 823; 113 Ga. 597; 92 Ga. 535.

W. H. Hammond, James B. Burch, contra,

cited: 1 Ga. App. 678; 129 Ga. 115; 158 Ga. 792 (1); Civil Code. (1910), § 898; 145 Ga. 817 (2).


author: Bkoxles, O. J.

text:
    18887.
    Dennis v. Rainey.
    Decided June 12, 1928.
   Bkoxles, O. J.

Under the pleadings and the agreed statement of facts the plaintiS in the trial court was entitled to recover interest on the note sued upon, and the contrary holding of the court was error.

Judgment reversed.

Luke and Bloodworth, JJ., concur.

E. B. Lambert, for plaintiff,

cited: Civil Code (1910), §§ 4396, 4400; 85 Ga. 142.

Meriwether F. Adams, for defendant,

cited: 74 Ga. 583 (3); 9 Ga. 133 (3); 21 Ga. 504 (2).


text:
    18888.
    McCOY v. SOUTHERN LUMBER COMPANY.
    Decided June 15, 1928.

      Oliver & Oliver, John Z. By an, for plaintiff.

      J. P. Dulces, for defendant.
   Luke, J.

McCoy sued Southern Lumber Company in the superior court for damages for personal injuries. Paragraph 6 of the petition alleged that “on July 24, 1926, and prior thereto, said defendant company had in its regular employ at its sawmiüing plant at Pembroke more than ten men, and was not operating under the workmen’s compensation act.” The answer merely denied this paragraph. After the evidence had closed the court rendered the following judgment: “Upon motion of defendant the within case is dismissed, it appearing from the evidence that the industrial commission has jurisdiction, and that this court is without jurisdiction.” The plaintiff excepted to this judgment. His contention is that the “jurisdictional point was waived,” and that it was for the jury to determine whether or not the defendant company was operating under the act. It appears, from the evidence, that the plaintiff was an employee of the defendant company and was engaged at the time of his injury in attempting to perform his duty of oiling a saw-mandrel at the company’s sawmill, and that the company had regularly in its service more than ten men. It does not appear that either the employer or the employee had pursued the method prescribed by the workmen’s compensation act to obtain exemption from the operation and effect of that act. The evidence is strongly to the effect that the employer carried no compensation insurance, and was making no attempt to comply with the requirements of the act.

1. As a matter of law, both the employer and the employee were presumed to have accepted the provisions of the workmen’s compensation act and were bound by it. Ga. L. 1930, p. 171, sec. 4.

3. The rights and remedies granted to the employee by that act excluded all other rights and remedies, at common law or otherwise. Ga. L. 1920, p. 176, sec. 12; Holliday v. Merchants & Miners Transportation Co., 32 Ga. App. 567, 571 (124 S. E. 89).

3. Under both the law and. the pleading the burden was upon the employee to prove that the employer had rejected the act; and this burden was not carried by showing that the employer had not complied with the insurance feature of the act.

(a) Where the employer refuses or wilfully neglects to comply with the requirements of section 66 of the act as to insuring his liability thereunder, he is guilty of a misdemeanor, and the industrial commission may assess against him compensation in an amount greater by ten per cent, than that provided by the act and reasonable attorney’s fees for the representative of the employee. Ga. L. 1920, p. 204, sec. 67, as amended by the act of 1923 (Ga. L. 1923, p. 97, sec. 7).

4. The court’s judgment that the industrial commission, and not the superior court, had jurisdiction of the controversy between the parties is correct, and the exception to that judgment was properly overruled.

Judgment affirmed.

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