text:
    17749.
    WATKINS v. THE STATE.
    The charge of the court as to robbery by force was not subject to the exceptions taken. It sufficiently informed the jury that, to constitute the offense, the goods must have been taken without the consent of the person in possession and with intent to steal them.
    Criminal Law, 17 C. J. n. 255, n. 53.
    Robbery, 34 Cyc. p. 1811, n. 91, 93.
    Decided January 11, 1927.
    Rehearing denied February 23, 1927.
    Eobbery; from Wilkes superior court — Judge Perryman. October 4, 1936.

      F. W. Gilbert, Hugh E. Combs, for plaintiff in error.

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

1. The defendant was convicted of robbery. He excepts to the refusal of a new trial. The motion for a new trial complains of the following excerpt from the charge of the court: “You will bear in mind that I have instructed you to eliminate the question of robbery by intimidation and by suddenly snatching and carrying away. I read you section 149 of the Penal Code: ‘Eobbery by open force or violence shall be punished by imprisonment and labor in the penitentiary for not less than four years nor longer than twenty years.’” The evidence authorized this charge. Furthermore, under it the jury were required to find that there was a robbery by force, before they would be authorized to convict, and were not authorized to convict for robbery by intimidation or snatching.

2. Error is assigned “because the court charged as follows: ‘I charge you that there is no evidence of robbery by intimidation or suddenly snatching and carrying away the articles set forth in the bill of indictment, but you are to determine, from all the evidence, facts, and circumstances in the case, as to whether or not there was robbery by force as named and set forth in the bill of indictment.’” It is alleged that this was error “in that the taking by force was misleading, in that the court should have instructed the jury further by adding thereto that the taking must be done without the consent of the person in possession or control, and with intent on the part of the defendant to steal the particular articles described in the bill of indictment.” The third and fourth special grounds 'complain of the court’s failure to charge that the goods must have been taken without the consent of the person in possession and with intent to steal the same. The judge in his charge stated to the jury that the bill of indictment charged the defendant with taking the goods “without the consent of the said Dave Rusher and with intent to steal the same;” and later in his charge he stated to the jury that in order to convict, they would have to believe beyond a reasonable doubt that the defendant “did commit the offense of robbery by force and violence as set forth and alleged in the bill of indictment. The court also read to the jury section 148 of the Penal Code, defining robbery. The charge sufficiently informed the jury that the goods must have been taken 'without the consent of the person in possession and with intent to steal the same. See Goolsby v. State, 24 Ga. App. 330 (100 S. E. 768).

3. The evidence authorized the verdict, and no error of law appears.

Judgment affirmed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.


source: Caselaw Access Project

author: Broyles, C. J.

license: Public Domain

text:
    17753.
    Morgan v. The State.
    Decided January 11, 1927.
    Fornication; from Gordon superior court — Judge Tarver. October 9, 1926.

      F. A. Cantrell, J. M. Lang, for plaintiff in error.

      C. C. Pittman, solicitor-general, contra.
    Criminal Law, 17 C. J. p. 248, n. 3; p. 255, n. 53.
    Fornication, 26 C. J. p. 993, n. 40.
   Broyles, C. J.

The evidence authorized the verdict, and, under the facts of the ease, the grounds of the amendment to the motion for a new trial show no cause for a reversal of the judgment below.

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.


author: Luke, J.

text:
    17756.
    Whittemore v. The State.
    Decided January 11, 1927.
    Rehearing denied February 23, 1927.
    Possession of liquor; from city court of Newnan — Judge Stallings. October 20, 1926.
    1. A jug of whisky in a sack, and a quart cup, were found under a bush in the defendants pasture, about 300 yards from the house in which he resided with his wife and an adult son. The ground was wet from recent rain, and on a path between his house and the whisky were fresh and' distinct foot-tracks which went through his barn and the pasture and stopped at the whisky, and turned about and returned to his house. A watermelon patch cultivated by the defendant was “just above this whisky,” but across the pasture fence. Among the stock in the pasture were a mule and a horse which the defendant has been working. “There was no evidence of any other fresh travel about this whisky.” The place where the whisky was found was not in plain view of the defendant’s house, the view being obstructed by short pines in the pasture. It was testified that the whisky was nearer to his house than to any other house. The roadway that ran near the pasture and led into the main highway near his house had been closed and could not be traveled, there being a barbed wire across it. A large number of holes, about two or three feet deep and about large enough to hold a five-gallon container, were found in the defendant’s pasture and just outside, in woods near his house. Fresh mule-tracks led from the barn' and through the pasture, and through a gap in the pasture fence, where the wire could be taken down, and went to a place about three quarters of a mile back of the defendant’s home, at which place were a large still, which apparently had been in operation, and 800 gallons of mash or beer “ready to run.” The mule-tracks led back from the still to the defendant’s barn, and there was no other track along that path. The son who had been living with the defendant and working for him was in south Georgia when the whisky was found, and had been there some weeks. In his statement at the trial the defendant said that he knew nothing of the whisky in his pasture or at the still. Others testified as to his good character, and there was rebuttal testimony as to his bad character in the community in which he lived.

      Criminal Law, 17 C. J. p. 267, n. 93; p. 322, n. 48.
    Intoxicating Liquors, 33 C. J. p. 760, n. 33; p. 762, n. 55.
   Luke, J.

1. Though the evidence upon which the conviction rests is circumstantial, it is sufficient to exclude every other reasonable hypothesis than that of the guilt of the accused.

2. The evidence as to the finding of a still and eight hundred gallons of. mash three quarters of a mile from the defendant’s house, when taken in connection with the other evidence in the case, was not inadmissible. See Trentham v. State, 22 Ga. App. 134 (95 S. E. 538), and cit. Moreover, the same evidence was adduced from another witness without objection.

Judgment affirmed.

Broyles, C. J., concurs. Bloodworth, J., absent on accomit of illness.

3. Over the objection that “the defendant was charged with possessing whisky, and not manufacturing whisky,” the court admitted E. L. Pitman’s testimony as to the finding of the still and mash. Testimony of another witness to the same facts was after-wards admitted without objection. The only ground of the motion for a new trial other than the usual general grounds complains of the admission of the above-mentioned testimony of Pitman.

S. h. Dyer, for plaintiff in error.

Stanford Arnold, solicitor, contra.


text:
    17757.
    Gravitt v. The State.
    Decided January 11, 1927.
    Rehearing denied February 23, 1927.
    Attempt of larceny; from Fulton superior court — Judge Howard. October 30, 1926.
    Application for certiorari was made to the Supreme Court.

      V. M. Oweriby, J. H. Smith, W. H. Terrell, for plaintiff in error.

      John A. Boylcin, solicitor-general, J. W. LeOraw, J. H. Hudson, contra.
    Criminal Law, 17 C. J. p. 203, n. 97.
    Indictment and Information, 31 C. J. p. 794, n. 89 New; p. 799, n. 99; p. 871, n. 31.
   Broyles, C. J.

1. “Every defendant has the right to be tried upon an indictment or accusation perfect in form and substance, but this right, like every other (even the right -of trial itself), may be waived. One who waives his right to be tried upon - an indictment perfect in form as well as substance, and takes his chances of acquittal, will not be heard, after conviction, to urge defects in the indictment, unless those defects are so great that the accusation is absolutely void.” Lanier v. State, 5 Ga. App. 472 (2) (63 S. E. 536).

2. Where an indictment upon which one has been convicted is so defective as to be absolutely void, a motion to set aside the judgment is not the appropriate remedy. McDonald v. State, 126 Ga. 536 (55 S. E. 235).

3. Conceding (but not deciding) that the indictment in the instant case, charging the accused with an attempt to commit larceny of an automobile, was void, for the reason that it failed to allege that the automobile was of any value, the motion to set aside the judgment of conviction was not the appropriate remedy, and the court properly denied the motion.

{a) The fact that the trial court gave another reason for denying the motion is immaterial. It is well settled by repeated rulings of the Supreme Court and of this court that where a judgment of the trial court, excepted to, is, for any reason, correct, the judgment will be affirmed by the reviewing court, even if the reason given by the trial court for its judgment be an erroneous one.

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.


text:
    17761.
    17762.
    SHANK v. THE STATE. THOMAS v. THE STATE.
    Failure to charge the jury in this case 'that to convict the defendants, who were charged with vagrancy, the evidence should show that they were more than sixteen years of age, is not shown to have been error, it not appearing from the motion for a new trial, or from the evidence, that either of the defendants was not of that age.

      Criminal Law, 17 C. J. p. 176, n. 78.

      The evidence authorized the verdict.
    Decided January 11, 1927.
    Vagrancy; from city court of Washington — Judge Sutton. October 11, 1926.

      F. H. Colley, Hugh E. Combs, for plaintiff in error.

      Charles H. Calhoun, solicitor, contra.
   Broyles, C. J.

1. The defendants in these two cases were convicted of the offense of vagrancy. The accusation in each case was drawn under subsections 1, 2, and 3 of section 449 of the Penal Code, and contained no reference to the age of the defendant. Each defendant made a motion for a new trial, based upon the usual general grounds and upon a special ground that “the court failed to charge the jury that it was necessary, before a conviction, that the evidence should show that the defendants were over sixteen years of age. It having been argued before the jury by counsel for the defendants that proof of the age of the defendants was necessary, and the defendants being present and in court and observed by the jury, the court having failed to make this charge, the jury were led to conclude that it was not necessary to prove that the defendants were over the age of sixteen years. Also, when the solicitor was about to attempt to prove the ages of the defendants, the court stated that it was too late.” This ground fails to show that the defendants were not over sixteen years of age. Furthermore, it fails to show that they were minors. The evidence also fails to show the ages of the defendants. It is impossible for this court to determine from the special ground of the motion for a new trial, or from the evidence, or from both combined, whether the defendants were minors or acquits. It follows that this court is unable to hold that the failure of the court to charge as complained of was error.

2. The verdict was authorized by the evidence.

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.


text:
    17763.
    Clark v. The State.
    Decided January 11, 1927.
    Making intoxicating liquor; from Walker superior court — Judge Maddox. November 1, 1926.

      M. B. Eubanks, for plaintiff in error.

      J. F. Kelly, solicitor-general', contra.
    Criminal Law, 16 C. J. p. 713, n. 31.
   Luke, J.

The conviction of the defendant of a violation of the prohibition statute (making whisky) was dependent upon the corroboration of an accomplice; and the corroboration did not meet the requirements of the law. In fact there were two accomplices, one testifying that the defendant was involved as a shareholder in the distilling outfit, and the other that the defendant had no interest in it. Eor the reason that there was not the degree of corroboration required by law, the court erred in overruling the motion for new trial.

Judgment reversed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.


text:
    17764.
    Henderson v. The State.
    Decided January 11, 1927.
    Possessing intoxicating liquor; from city court of LaGfrange— Judge Tuggle. November 4, 1926.

      W. B. Armistead, for plaintiff in error.

      L. L. Meadors, solicitor, contra.
    Criminal Law, 16 C. J. p. 1201, n. 63; p. 1230. n. 66: 17 C. J. p. 252, r n. 17; p. 255, n. 53.
   Luke, J.

1. “Cumulative evidence to prove an alibi, even if newly discovered, is not cause for a new trial.” Harrison v. State, 83 Ga. 129 (9 S. E. 542); Tipton v. State, 119 Ga. 305 (46 S. E. 436); Hanson v. State, 27 Ga. App. 590 (2) (109 S. E. 523).

(a) Furthermore, in the instant case the affidavits in support of the “newly discovered” witnesses were defective, in that they failed to give the names of their associates. The trial judge, therefore, did not abuse his discretion in refusing to grant a new trial on account of the alleged newly discovered evidence. Ivey v. State, 154 Ga. 63 (6) (113 S. E. 175); Waller v. State, 34 Ga. App. 674 (131 S. E. 95).

2. The evidence authorized the verdict, and, the finding of the jury having been approved by the trial court, and no error of law appearing, this court is without authority to interfere.

Judgment affirmed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.


author: .Broyles, C. J.

text:
    17765.
    Hilson v. The State.
    Decided January 11, 1927.
    Possession of apparatus for making liquor; from city court of Sandersville — -Judge Goodwin. . October 20, 1926.
    It was testified that in the defendant’s home were two barrels of mobby, “prepared to make liquor from,” and a wash-pot and a galvanized tin lid which fit the pot fairly well; that the pot was “an ordinary wash-pot such as negroes use for washing purposes,” but “there was nothing about it to show that it had ever been used for making any liquor;” that the mobby was made of corn, water, and syrup, and liquor could have been made from it, but the witnesses could not say whether it had been run through a still; it looked as if it had been cooked; the rim of the wash-pot had on it something that looked like dried dough, but there was nothing on the lid; that the defendant said he had not made any liquor since Christmas, and he made it with a borrowed still. The defendant, in his statement at the trial, said that the stuff which they said he had for making whisky was for feeding his hogs; that he had the wash-pot in his house’ to keep anybody from stealing it; that he found the lid in the road, and that he was not guilty of making whisky and did not have any of these things for that purpose.

      J. J. Harris, for plaintiff in error,
    cited 24 Ga. App. 319 (1) .

      George C. Evans, solicitor, contra.
    Intoxicating Liquors, 33 C. J. p. 761, n. 53.
   .Broyles, C. J.

Tliere ivas no evidence authorizing the defendant’s conviction of the offense charged, and the refusal to grant him a new trial was error.

Judgment reversed.

Luke, J., concurs. Bloodworth, J, absent on account of ilbiess.


text:
    17766.
    Miller v. The State.
    Criminal Law, 16 C. J. p. 764, n. 54.
    Weapons, 40 Cyc. p. 861, n. 82.
   Luke, J.

The evidence as to the defendant’s carrying the pistol without a license being entirely circumstantial, and the proved facts failing to exclude every other reasonable hypothesis than that of the guilt of the accused, the court erred in overruling the motion for a new trial.

Decided January 11, 1927.

Carrying a pistol without license; from city court of Sanders-ville — Judge Goodwin. November 21, 1926.

The pistol in question was found on the right-hand side of the back seat of the automobile of one Smith after the defendant, who had been sitting on that side, and two other persons who were on the seat with him, left the car. It was not seen in his possession, and in his statement at the trial he said that he did not have a pistol and had never owned one.

J. J. Harris, for plaintiff in error.

George C. Evans, solicitor, contra.

Judgment reversed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.


text:
    17767.
    Terry v. The State.
    Decided January 11, 1927.
    Certiorari; from Fulton superior court — Judge Howard. September 20, 1926.

      H. A. Allen, for plaintiff in error.

      Roy Dorsey, solicitor, John A. Boykin, solicitor-general, J. W. LeCraw, J. H. Hudson, contra.
    Criminal Law, 16 C, J. p. 589,' n. 14, 18; p. 590, n. 25; 17 C. J. p. 255, n. 53.
   Broyles, C. J.

1. The defendant was charged with possessing whisky, and, under all the facts of the case, it was not error to admit evidence that on other occasions, some.two or three months before the date of the offense charged, he was in possession of large quantities of whisky and was engaged in the business of transporting and selling whisky. This evidence was admissible to prove scienter, or guilty knowledge of the accused, and to show his intent or motive under the circumstances. See, in this connection, Cole v. State, 120 Ga. 485 (1) (48 S. E. 156); Frank v. State, 141 Ga. 243 (80 S. E. 1016); Jones v. State, 32 Ga. App. 7 (1) (122 S. E. 738); Reddick v. State, 15 Ga. App. 437 (2), 442, 443 (83 S. E. 675); 1 Wharton on Criminal Evidence (10th ed.), § 31.

2. The conviction was amply authorized by the evidence, and the overruling of the certiorari was not error for any reason assigned.

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.


text:
    17772.
    Harvey v. The State.
    Decided January 11, 1927.
    Making intoxicating liquor; from Morgan superior court — Judge Park. November 1, 1926.

      Percy Middlebrooks, E. R. Lambert, for plaintiff in error.

      Joseph B. Duke, solicitor-general, contra.
    Criminal Law, 17 O. J. p. 255, n. 53.
   Broyles, C. J.

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

Judgment affirmed.

Luke, J., concurs. Bloodworlh, J., absent on account of illness.


text:
    17773.
    LAMB v. THE STATE.
    A conviction on the charge of having possession and control of intoxicating liquor was authorized by the evidence, and there is no merit in any ground of the motion for a new trial.
    Criminal' Law, 16 O. J. p. 1050, -n: 84; 17 O. J. p. 233, n. 83; p. 255, n. 54.
    Intoxicating Liquors, 33 G. J. p. 756, n. 58.
    Decided January 11, 1927.
    Possessing liquor; from city court of Swainsboro — Judge Herrington. November 12, 1926.
    Price, Spivey & Edenfield, for plaintiff in error.
    I. W. Rountree, solicitor, contra.
   Luke, J.

Lamb was convicted of violation of the prohibition statute. The State proved that in his horse lot, in a dugout covered over by a locked plank door, was found, freshly buried in the ground, inore than sixty gallons of “liquor.” The defendant, in his statement at the trial, said that he had used this place for storing “liquor,” but had not so used it for a long time, — not since they found ninety gallons of “liquor” there had he so used it; that some one else had stored it there. There was no denial that the storage place was owned and controlled by the defendant. The contention that there was no proof that the “liquor,” contained in glass jars and kegs, was intoxicating is controlled by Smith v. State, 17 Ga. App. 118 (86 S. E. 283), and cases cited. There was ample evidence to authorize conviction; and when the charge of the court is read in its entirety, there is no merit in the assignment of error upon the excerpt from the charge. The assignment .of error upon the court’s refusal to continue the case is also without merit. The defendant has had a fair trial, and for no reason pointed out did the court err in overruling the motion .fot a new trial.

Judgment affirmed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.


text:
    17774.
    McCaskill v. The State.
    Decided January 11, 1927.
    Possessing intoxicating liquor; from city court of Valdosta— .Judge Cranford. October 26, 1926.

      West L. Cranford, T. Q. Connell, W. E. Perry, for plaintiff in error.

      B. O. Diclcerson, solicitor, contra.
    Criminal Law, 16 C. J. p. 969, n. 21; p. 1199, n. 56; p. 1202, n. 70; p. 1206, n. 95; p. 1228, n. 52;^17 C. J. p. 339, n. 64.
   Luke, J.

1. A conviction of possessing intoxicating liquor was authorized by the evidence, which showed that the defendant operated a restaurant and boarding house, that the officers found whisky in a trap under the rug in. a vacant room in the house, and several empty bottles, that the lock on the door of this room was different from that of the other rooms, it being a Yale lock, that no one was occupying the room when the whisky was found there, and that the officers had found whisky there about three months previous to that time and the defendant had admitted that it was his whisky.

2. The newly discovered evidence of J. C. Dowling affords no cause for a. new trial. The supporting affidavits do not conform to the requirements of the law. See Ross v. State, 18 Ga. App. 503 (1) (89 S. E. 589). Furthermore, the alleged newly discovered evidence was cumulative and impeaching, and, under the counter-affidavits submitted by the State, had it been submitted to a jury it would not probably have produced a different result.

3. The court did not err in refusing to admit the testimony set out in the second special ground of the motion.

4. The charge of the court that “the State is not confined to the date alleged in the accusation, but may prove any date within two years prior thereto from the date of this accusation,” though not qualified, was not, under the facts of this case, ground for a new trial. Neither was the court’s charge on confessions harmful error under the evidence adduced on the trial.

Judgment affirmed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.


text:
    17775.
    Young v. The State.
    Decided January 11, 1927.
    Making intoxicating liquor; from DeKalb superior court — Judge Hutcheson. September 11, 1936.
    Application for certiorari was denied by the Supreme Court.

      Branch & Howard, for plaintiff in error.
    Criminal Law, 16 C. J. p. 1114, n. 45; p. 1115, n. 55.
   Broyles, C. J.

The accused was being tried for the offense of manufacturé ing whisky, and the following verdict was returned: “We, the jury, find the defendant guilty, and recommend it be treated as a misdemeanor.” The verdict was received in open court, and published, and the jury dispersed, taking their seats in various parts of the court-room. A few minutes later the court recalled the jury to the jury box, and inquired of each juror if, since the verdict was published, he had spoken to any one about the case, or if any one had spoken to him about the case and each juror answered the questions in the negative. The court thereupon stated to the jury that he had charged them that if they found a verdict of guilty it would be their duty to fix a minimum and a maximum sentence of not less than one year nor greater than five years. The court then again correctly charged them upon their duty to fix a minimum and maximum sentence and instructed them to retire. The jury thereupon retired to the jury room and subsequently returned the following verdict: “We, the jury, find the defendant guilty, and fix the minimum and maximum penalty one year, and recommend it be treated as a misdemeanor,” the original verdict being altered •by the insertion therein of the words “and fix the minimum and maximum penalty one year.” This verdict was received in open court and published, and the court thereupon sentenced thg defendant to be put to work and labor on the public works of the county of DeKalb for the term of six months. During the same term of court the defendant .filed a motion to vacate and set aside the verdict and judgment, on the ground “that the verdict upon which said judgment was based - was illegal, and that no legal judgment or sentence could be predicated thereon, and that the judgment against defendant was therefore illegal, for the reason that it was improper and illegal,for the court,to permit the jury to reassemble and to resubmit the ease to the jury under the circumstances as set out in said motion.” Seld, that the denial of the motion to vacate and set aside the verdict and judgment was not error.

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.


text:
    17777.
    Simmons v. The State.
    Decided January 11, 1927.
    Indictment for assault with intent to rape; conviction of assault; from Bulloch superior court — Judge Strange. October 28, 1926.
    The indictment charged that the defendant made an assault upon a named female and attempted to have carnal knowledge of her forcibly and against her will. She testified: “I was going to Mrs. Johnson’s and was about 50 yards from her house. I was going along down the road and I was running when I left the house, and he [the defendant] asked me where I was going to, and I told him none of his business, and he got hold of me, and I hollered and got away from him. When I got loose he said he was going to kill me the next time he got hold of me, and about that time Mr. Johnson came up. . . He did not say anything to me when he caught me. . . He said something to me after I hollered. He put his hands over my. mouth to try and keep me from hollering. That is all I know about it. . . I went to school with this boy six or seven years ago. . . I have been knowing him all of this time.. . . It was a moonlight night. . . He was ahead of me going down the road, . . and he kept on down the road. I caught up with him; . . he asked me where I was going. I told him I was going about my business, and then I started running; . . he caught up with me. . . Then I said he put his hands over my mouth. He didn’t try to choke me, or beat me, and did not pull up my clothes. He did put his hands over my mouth. . .' He didn’t hurt me any. He didn’t ask me about anything. I was hollering and seared and I couldn’t tell what he said. I was scared when I left my-home, and that was the reason I was running.” It was testified that she said to a witness, who went to her on hearing her scream, that “a nigger had thrown her down,” and that “the nigger threatened her.” It was also testified that the defendant, after he had been arrested, “said he ran up and got hold of her, and she fell then;” that he did not intend to rape her, but that if he had been able to stop her hollering, “he was going to ask her for a piece;” that “he thought he would get him a piece, and that was, the reason why he called to her.”

      Criminal Law, 17 C. J. p. 203, n. 87.
    Indictment'and'Information, 31 C. J. p. 864, n. 28.
   Luke, J.

“Upon the trial of one charged, with assault with intent to rape, where the undisputed evidence shows that if any offense was committed, it was either assault with intent to rape or assault and battery, a verdict finding the defendant guilty of a mere assault is contrary to the law and the evidence.” Fronebarger v. State, 27 Ga. App. 607 (109 S. E. 512), and cases cited. The foregoing being controlling, it is not necessary to discuss the grounds of the amendment to the motion for a new trial.

Judgment reversed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.

Francis B. Hunter, for plaintiff in error.

John C. Hollingsworth, solicitor-general, contra.


text:
    17778.
    Adams v. The State.
    Decided January 11, 1927.
    Certiorari; from Fulton superior court — Judge Howard. October 5, 1926.

      Arthur W. Powell, for plaintiff in error.

      John A. Boykin, solicitor-general, J. Walter LeCraw, John H. Hudson, contra.
    Certiorari, 11 C. J. p. 151, n. 49.
    Criminal Law, 17 C. J. p. 255, n. 53.
   Broyles, C. J.

The petition for certiorari in this ease set forth that certain evidence was admitted over the objection of the defendant. However, the petition contained no assignment of error upon this ruling, and hence that question could not be considered by either the superior court or this court. See, in this connection, Lowenstein v. Johnston, 23 Ga. App. 261 (2) (98 S. E. 111), and citations.

The only assignments of error were upon certain excerpts from the charge of the trial court, and upon the finding of the jury. The verdict was authorized by the evidence, and no material error appears in the portions of the charge excepted to. The overruling of the certiorari was not error for any reason assigned.

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.


text:
    17779.
    Johnson v. The State.
    Forgery, 26 C. J. p.- 015, n. 30.
   Broyles, C. J.

1. The instrument charged to have been forged was commonly known as a “salary assignment.” It consisted of two parts, the first part being entitled “Application to sell salary or wage account,” and the second part being the salary assignment. In this second part it is directed that the Southern Railway Company pay the amount of $16 to Citizens Finance Company; and the instrument recites that that amount is due by the Southern Railway Company to the maker of the instrument, who is also an employee of that company, for salary already earned. The second part, therefore, is clearly an “order for money,” within the meaning of subsection 7 of section 231 of the Penal Code of 1910; and the first part could properly be treated as surplusage, as the gist of the offense is the forging of the order for the payment of the money.. (No demurrer to the indictment was interposed.) See, in this connection, Hoskins v. State, 11 Ga. 92 (5), 100; Gibson v. State, 79 Ga. 344 (3), 346 (5 S. E. 76); Johnson v. State, 62 Ga. 300 (2); Chambers v. State, 22 Ga. App. 748 (1), 752 (97 S. E. 256).

Decided January 11, 1927.

Forgery; from Fulton superior court — Judge E. D. Thomas. October 30, 1926.

J. S. Hall, for plaintiff in error.

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

2. Under the above-stated ruling the verdict was authorized by the evidence, and the grounds of the amendment to the motion for a new trial are without merit.

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.


text:
    17780.
    Yassen v. The State.
    Decided January 11, 1927.
    Keceiving- stolen goods; from Fulton superior court — Judge Howard. October 23, 1926.
    On the trial of Yassen on an indictment charging him with receiving stolen goods the verdict was: “We, the jury, find the defendant guilty, and recommend it be treated as a misdemeanor;” and the court entered a judgment thereon that he pay a fine of $900 and labor on the public works for twelve months. The defendant made a motion to set aside the judgment, on the ground that it was illegal and void, because it did not conform to the requirement of law that the jury in their verdict in all cases of felony not punishable by life imprisonment shall prescribe a minimum and maximum term, which shall be within the minimum and maximum prescribed by law for that crime. The motion was overruled.
   Luke, J.

The question raised in this case is controlled by the decision in Lee v. State, 35 Ga. App. 235 (133 S. E. 281). The Lee case upon its facts does not conflict with Mitchell v. State, 34 Ga. App. 505 (130 S. E. 355). The court did not err in overruling the defendant’s motion to set aside the judgment based upon the verdict which had convicted him of receiving stolen goods.

Judgment affirmed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.

Branch & Howard, for plaintiff in error.

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


text:
    17781.
    FRY v. THE STATE.
    Abandonment by the defendant in this State of his year-old child, born when the mother was on a visit outside the State, was sufficiently shown by the evidence.
    Evidence that the defendant had gonorrhea and gave it to his wife, and that as a result her babe was born blind in one eye, was admissible; it could show a reason for their separation.
    The charge of the court as to where dependency began was not erroneous.
    No ground for reversal is shown.
    Decided January 11, 1927.
    Abandonment of child; from city court of Summerville — Judge Neal. October 28, 1926.
    Application for certiorari was denied by the Supreme Court.
    It was complained that the court refused a written request to charge as follows: “If you find that the dependency upon others of the child began in a State other than the State of Georgia, and afterwards this child was brought into this State and county, and the defendant did not know of said child having been brought into said State, then he could not be convicted of the offense of abandonment in this State.” The court charged: “The crime, if any is committed, under section 116 of the Penal Code, which I have just read in your hearing, is in the county where the child’s dependency upon others begins. If you should find that'the defendant abandoned his minor child and failed to support it, as alleged, in this county, on the date alleged or within two years prior to the filing of this indictment (which was on the 13th day of September, 1926), it would be your duty to find the defendant guilty; otherwise it would be your duty to acquit the defendant.”
    Criminal Law, 16 C. J. p. 164, n. 48.
    Parent and Child, 29 Cye. p. 1677, n, 3, 5; p. 1678, n. 11, 14; p. 1679, n. 33, 35 New.

      It was complained that the court' charged as follows: “The relation between the father and mother and the conduct of the mother has nothing to do with this case, but has been permitted to go to you for the purpose of aiding you, if it does aid you, in arriving at a true and proper verdict in the case on trial, and for that purpose, only.” It was alleged that this was an intimation of what had been proved, and of the guilt of the accused, in that it charged that the conduct of the father did have something to do with the case; also that it was confusing and misleading, in that it did not explain how this evidence, though having nothing to do with the case, could aid the jury in arriving at a verdict.
    It was complained that the court, in the presence of the jury, said to counsel for the defendant, in reply to their objection to testimony that the defendant gave gonorrhea to -his wife: “I think it had as much to do with the case as matters relative to his relations with her mother in law that I have let you inquire into, and I will let it stay in because I have let you inquire into that.” It was alleged that this was a prejudicial expression of opinion on the part of the court.
    The main facts of .the case are stated in the following opinion.

      John D. & K. S. Taylor, for plaintiff in error.

      J. F. Kelly, solicitor, contra.
   Luke, J.

1. The defendant was convicted of abandoning his year-old child. The motion for a new trial alleges that the abandonment took place in Alabama, and that hence the conviction can not stand. The evidence shows that the defendant’s wife, at the time conception took place, was living with him and his mother in Chattooga County, Georgia; that a short time before the birth of her child the wife went to Alabama, where hex sister could attend her during child-birth, since the mother of the defendant was too old to be of much assistance in this respect; that this trip was made with the full consent of the defendant; that the wife never changed her residence to Alabama, but, was there only on a visit for the purpose stated above; that the child was born in Alabama when the mother was there on this visit and when the residence of both parents was in Chattooga County, Georgia, and that the defendant visited his wife and child in Alabama. The wife later came from Alabama back to Chattooga County, Georgia. She testified: “I have been back in Georgia nearly two months. I came to this county nearly two months ago. The child has been dependent upon others in this county since I came back from Alabama. My father lives in this county and I am living with him now. • I went down to Alabama for my confinement. He [the defendant] has not contributed anything for support of me or my child since I came back to Georgia and has not lived with me. . . Three weeks after I brought my child back I swor'e out a warrant for him, charging him with abandonment. That warrant is the basis of this case.” The defendant contends that he did not know his wife and child were in Georgia, but, according to the testimony quoted above, he must have known it after the warrant for him was sworn out, about five weeks before the trial, and he contributed- nothing towards the support of his child during that time. Furthermore, the jury could properly presume, from the evidence adduced, that if the defendant was not sufficiently interested to ascertain the whereabouts of his child, he had abandoned it. The evidence indicates that there was some disagreement between the parents of the child during the wife’s visit in Alabama, but it does not show an abandonment of the child there. Even if the wife were censurable in any disagreement which she might have had with her husband (which the evidence does not show), this would not relieve the husband of the duty to support his year-old child.

2. Error is alleged because the court admitted evidence that the defendant had gonorrhea and gave it to his wife, and that as a result her babe was born blind in one eye. Hnder the particular facts of this case there was no error in admitting this evidence. It could show a reason for the parents living in a state of separation; separation from the wife in this case was separation from the child, which was of tender years and was with its mother; and “absence is a necessary element in the crime of abandoning destitute and dependent children.” Brown v. State, 122 Ga. 568 (50 S. E. 378).

3. The court did not err in the charge relative to where the dependency began.

4. The evidence supports the verdict, none of the grounds of the motion for a new trial show reversible error, and the court properly overruled the motion..

Judgment affirmed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.


text:
    17782.
    Shahan v. The State.
    Decided January 11, 1927.
    Rehearing denied February 23, 1927.
    Making intoxicating liquor; from Catoosa superior court — Judge Tarver. November 9, 1926.

      Norman Shattuch, for plaintiff in error.

      G. G. Pittman, solicitor-general, contra.
    Criminal Law, 16 C. J. p. 1202, n. 70; p. 1230, n. 66; 17 C. J. p. 212, n. 18; p. 252, n. 17. •
   Broyles, C. J.

1. In view of the judge’s note to ground 1 of the amendment to the motion for a new trial, which complains of the admission of certain evidence over the objections of the defendant, the admission of the evidence was not error for any reason stated to the court at the time the evidence was offered.

2. The alleged newly discovered evidence is impeaching in its character, and the affidavits in support of the new witnesses are defective, in that they fail to give the names of their associates. Civil Code (1910), § 6086. The trial judge, therefore, did not abuse his discretion in overruling the ground of the motion for a new trial based upon such evidence. Ivey v. State, 154 Ga. 63 (6) (113 S. E. 175); Crosby v. State, 34 Ga. App. 235 (128 S. E. 817).

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

Judgment affirmed.

Luhe, J., concurs. Bloodworth, J., absent on account of illness.


text:
    17783.
    Raines v. The State.
    Decided January 11, 1927.
    Possessing liquor; from city court of Macon — Judge Hall. November 6, 1926.
    In a room in the basement of an apartment house of which the defendant was janitor three quarts of whisky, several bottles, jugs, and a funnel were found by an officer, the State’s only witness. He testified: “I prized^the door open and got in.” “I saw some clothes, a trunk, and a bed in there.” “The room had a lock to it, and after I arrested the defendant I found a key on his person that unlocked the door to this room. The defendant told me that the room where I found this whisky was the stock-room, and that he used it to change his clothes in, and that he occupied the room. When I went in I saw somebody run out of the basement, but I could not tell who it was. I found the defendant in the garage, under an automobile. . . The door that led into the basement was unlocked. The door to the room where I found the whisky was locked. . . There are three ways that you can get into the basement. There is an entrance from the side and one from the back stairway that leads from the apartments on the first fioor. Any one in the apartment can get into the basement where the room in which the whisky was found is located. . . I did not see the defendant have any whisky. . . I guess any one living in the apartment could put it there if they could get in the room.” The owner of the building testified that about a hundred persons occupied the apartments and that all of them could go into the basement and get into the room where the whisky was, without a key, and that any one in the building could put whisky there without the defendant’s knowledge of it; that the door of that room stays open nearly all the time, and may be opened by pushing the lock back with a finger or a knife; that bottles are taken to the basement every day with the trash, and funnels were used to catch drain water from refrigerators in the building, and jugs had been there for several months; that a number of chauffeurs who drive for occupants of the building loafed around the .room where the whisky was found; that the defendant changed his clothes there, but did not stay or sleep there, and did not drink, and that the key taken from him by the officer did not fit the lock of that room, but fit the door into the basement. Another witness residing in the building testified to the same effect as to the accessibility of the room in question, and that he himself kept whisky upstairs. The defendant, in his statement at the trial, said that he did not know anything about the whisky found by the officer, that he had not been in the room on the day on which it was found, and did not live in that building, and that the lock of the door of the room mentioned had been broken and could be opened by a finger or a knife, and was open most of the time.

      Intoxicating Liquors, 33 C. J. p. 757, n. 71; p. 761, n. 53.
   Luke, J.

The defendant’s conviction was dependent upon circumstantial evidence which, in our opinion, did not meet the requirements of the law. For this reason it was error to overrule the motion for a new trial.

Judgment reversed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.

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

Roy W. Moore, solicitor, contra.


author: Jenkins, P. J.

text:
    16985.
    Bankers Trust and Audit Company v. Farmers and Merchants Bank.
    Decided January 24, 1927.
    Complaint; from Twiggs superior court — Judge Camp. November 5, 1925.
    From the petition it appears that the plaintiff, Bankers Trust and Audit Company, rendered services as financial agent to the defendant, Farmers and Merchants Bank, under a five-year contract dated December 6, 1920, until December 31, 1922, when, it was alleged, the defendant discharged the plaintiff and refused to permit it to perform its duties as financial agent. The plaintiff sued for the amount of the subsequent payments provided for in the contract. The demurrer to the petition was on the following grounds: (1) No cause of action is set out. (2) The contract is unilateral and unenforceable. (3) The contract is without consideration. (4) It affirmatively' appears that there is no liability on the part of the defendant.
    The contract was in the form of a resolution of the stockholders of the bank, signed by its president and cashier, followed by a writing signed on the part of the plaintiff, accepting “the above employment and appointment upon the terms and at the salary and for the period therein named.” The resolution, after appointing the plaintiff as financial agent of the bank for a term of five years, provides, that “its duties as such agent shall be to check and examine the books, papers, and business of the said bank at such times as it may deem proper, to make financial connections and secure correspondents for the said bank;’.’ and, “it being necessary to the satisfactory discharge of these duties that there shall be perfect harmony between the cashier of the said bank and Bankers Trust and Audit Company, it is resolved that the said company shall have the full power and plenary jurisdiction over said cashier, with the right to discharge him whenever the said company deems it necessary and to the best interests of said bank to so discharge him, and . . that this shall be made a part of the bylaws of the bank, that no cashier shall be elected for . and during the term of this contract who shall not first produce the written approval' of the said company with a recommendation that he be elected to the office of cashier;” that “for these services to be rendered as such financial agent and for services already rendered and to be rendered in promoting and organizing said bank, said company shall be paid the sum of $500 per annum, payable quarterly, said payments to extend for and during the term of five years, beginning December 6, 1920, and ending December 6, 1925;” that “this authority and appointment to act as such agent and the obligations of the said bank to pay such salary shall be binding on the part of the bank for and during the said period, but should the said company at any time become dissatisfied with the management and operation of the said bank, then it may terminate its contract and take such steps as it may deem proper to sever its connection with and dispose of its interest in said bank;” that “this resolution and acceptance of said employment for the term of such agent at the salary herein named shall have all the force and effect of a contract between the said company and the said bank, and shall be spread upon the minutes of said bank,” etc.
   Jenkins, P. J.

Under the answers returned by the Supreme Court to the questions certified to it in this case (163 Ga. 352, 136 S. E. 143), the court did not err in sustaining the general demurrer to the plaintiff’s petition. Judgment affirmed.

Stephens and-Bell, JJ., conei/r.

The questions certified by the Court of Appeals to the Supreme Court were:

“1. Is a contract entered into by a duly organized bank for the future payment of a salary to its fiscal agent lacking in consideration in so far as the recited consideration relates to services already rendered and to be rendered in promoting and organizing said bank ?

“2. Would such portion of the recited consideration be invalid for the reason that the promise based thereon contravenes public policy, in that it seeks to charge the assets of the bank with payment for services of such character ?

“3. Is the contract lacking in mutuality, so far as it relates to payment for services to be rendered by the fiscal agent, because of its provision that, ‘should the said company [the fiscal agent] at any time become dissatisfied with the management and operation of the said bank, then it may terminate its contract and take such steps as it may deem proper to sever its connection with and dispose of its interest in said bank/ ”

Questions 1 and 3 were answered in the affirmative. As to the other question the Supreme Court said: “It can not be said, from the facts disclosed, that a recited consideration in a contract based on services already rendered and to be rendered in promoting and organizing a bank contravenes public policy.”

Clement & Campbell, for plaintiff.

R. A. Harrison, H. P. Griffin Jr., Jones, Park & Johnston, for defendant.


author: Bell, J.

text:
    17226.
    STANFORD v. SOUTHERN RAILWAY COMPANY.
    1. In an action against a railroad company for damages because of injuries sustained at a public crossing, where the suit is based upon failure to erect a blow-post at a point 400 yards from the crossing, and failure to blow the whistle of the locomotive as prescribed by statute, it is im- . material that the defendant had not erected a blow-post, where it appears that the engineer nevertheless blew the whistle in accordance with the legal requirements.
    2. The evidence introduced in behalf of the defendant conclusively rebutted the presumption of negligence that arose against it on proof of the plaintiff’s injury by the running of the defendant’s cars. This being true, a finding in favor of the defendant was demanded by the law and the evidence, and the court did not err in directing a verdict accordingly.
    Railroads, 33 Cyc. p. 665, n. 68; p. 1069, n. 93, 96.
    Decided January 24, 1927.
    Rehearing denied February 25, 1927.
    Action for damages; from Haralson superior court — Judge Irwin. January 20, 1926.

      Price Edwards, for plaintiff.

      Maddox, Matthews & Owens, E. 8. Griffith, for defendant.
   Bell, J.

The plaintiff sought to recover damages for personal injuries sustained when a truck driven by him was struck by the defendant’s train at a public-road crossing. At the close of the evidence upon the trial the court directed a verdict in favor of the defendant. The bill of exceptions complains that the court erred in directing the verdict, and also in a previous order overruling a demurrer to a part of the defendant’s answer. The only allegations of negligence were as follows: “No blow-post for said crossing had been erected on said track 400 yards east of the same, and the whistle of said locomotive was not blown as a warning to plaintiff.” “The failure to erect and have a blow-post 400 yards east of said crossing caused the engineer to fail to blow the whistle as required by law, and plaintiff entered upon said crossing without warning and without knowledge of the approach of said engine and cars.” “The failure to erect said blow-post aforesaid caused the engineer in charge of the train to fail to blow the whistle until it was too late to warn the plaintiff of the near approach of said train or to warn him not to enter upon said crossing.” From the evidence it appears that the crossing was approximately 150 feet west of the western boundary of the town of Waco, through which the train had just passed from east to west at the time of the collision. There was no blow-post 400 yards east of the crossing, but the post actually erected was 551 feet-east thereof, being within the limits of the corporation. If'a post had been erected 400 yards east of the crossing, that also would have been within the city limits. The defendant claims that since the point 400 yards east of the crossing was within the city limits, it was under no duty under the act of August 19, 1918 (Ga. L., 1918, p. 212; Park’s Code Supp. 1922, § 2677), to erect a blow-post as a signal of approach to the-crossing, or to blow the whistle in approaching the crossing, from that point. Under the law as it existed prior to the act of 1918 (see Civil Code of 1910, § 2677), this court, in A., B. & A. Ry. Co. v. Pope, 9 Ga. App. 647 (4) (72 S. E. 63), held that where a railroad crosses a public road without the bounds of a municipality, though within less than 400 yards of the corporate limits, the engineer is required to signal the approach of his train to the crossing, by blowing his whistle. The provisoes in section 4 of the act 'of 1918, prescribing the things to be done within the limits of towns and cities, like the proviso in the old law, appear to have reference only to crossings actually within the municipal limits, and not to crossings near by but .outside the limits. The language of the later statute differs to some extent from that of the old, but the meaning, as regards the question now under consideration, we think is the same. (The punctuation in the enrolled act in the office of the Secretary of State is not like the punctuation in the published copy.) The blow-post, however, is intended to indicate the crossing to the engineer, and the mere failure to erect it as prescribed in the act can have no effect upon the solution of the present ease or a ease of this sort, unless such omission of duty proximately caused the injury sued for. For instance, if the engineer begins to blow the whistle at a point 400 yards from the crossing and otherwise conforms to the statutory requirements with reference to blowing it as he approaches the crossing, it will be immaterial, in an action for damages against the railroad company, that the post was not erected in accordance with the law. In this case the positive, unequivocal, and unimpeaelied testimony of the engineer showed that he commenced to blow the whistle at a certain point, otherwise established without dispute to be 1267 feet east of the crossing, and that- he continued to blow it from that point, in the manner specified in the act, until he had met the legal requirements, the facts being fully stated by him. Numerous other witnesses testified to the same effect. There was no evidence that the whistle was not blown as the law requires. Therefore, under the evidence in the record, the presumption of negligence which on proof of the injury arose against the company was conclusively rebutted. In such a case there is no error in directing a verdict in favor of the defendant. Savannah, Florida &c. Ry. Co. v. McConnell, 94 Ga. 352 (21 S. E. 568); Central &c. Ry. Co. v. Waxelbaum, 111 Ga. 812 (35 S. E. 645); Atlantic Coast Line R. Co. v. Martin, 33 Ga. App. 176 (125 S. E. 778); Atlantic Coast Line R. Co. v. Paulk, 33 Ga. App. 293 (2) (125 S. E. 865).

From what has been said, the court seemingly erred in refusing, on demurrer, to strike that portion of the answer in which the defendant pleaded that it was under no duty to erect a blow-post or to blow the whistle’as to the approach of the crossing from the side next to the town or city of Waco, but this error was harmless, because, as we have stated, the evidence showed conclusively that the defendant complied with its statutory duty as to blowing the whistle; and, this being true, it makes no difference that the post was not erected. Where, as appears conclusively from the evidence in this case, a train is moving at a speed of not less than thirty-five miles per hour, or about fifty feet per second, it is a substantial compliance with the statutory requirement, as to blowing the whistle from a point 400 yards, or 1,200 feet, from the crossing, for the engineer to begin blowing it 1,267 feet from the crossing, where the blowing is then continued and concluded as prescribed by the statute. Calculation shows that in such a case the variation from the point at which the blowing should have commenced is but approximately five per cent, in distance, and that as a result the signal begins only about a second and a quarter off the proper time and earlier to that extent than if it had been given in strict and perfect compliance with the law.

The evidence having demanded a finding in favor of the defendant, the court did not err in directing a verdict accordingly.

Judgment affirmed.

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


text:
    17273.
    Mutual Fertilizer Company v. Moultrie Banking Company.
    Decided January 24, 1927.
    Adhered to on rehearing, February 25, 1927.
    Claim; from Colquitt superior court — Judge Thomas. March 12, 1926.

      DeLoache & McDonald, for plaintiff.

      P. Q. Bryan, for defendant.
    Landlord and Tenant, 36 C. J. p. 494, n. 79; p. 495, n. 92.
    Sales, 35 Cyc. p. 165, n. 82 New; p. 201, n. 9.
   Jenkins, P. J.

1. Under the Civil Code (1910), § 3348, landlords furnishing supplies to their tenants for the purpose of making crops on the rented premises have a lien, by operation of law, on the crops there made in the year for which the supplies were furnished. Such a lien is in the nature of a claim for purchase-money. Moseman v. Comer, 160 Ga. 106 (127 S. E. 406); Turner v. Sitton, 160 Ga. 215 (127 S. E. 847). Quaere: After such supplies have been furnished but before they are utilized by the tenant for the purpose intended, are they subject to levy and sale under executions against the tenant held by third persons?

2. Whatever might be the answer to the foregoing query, since delivery of goods is essential to the perfection of a sale, and since it appears in this case that the fertilizers claimed by the landlord had not been delivered to the tenant, but had been bought by and shipped to the landlord and turned over to the tenant with the direction that they be held to await further orders from the landlord, it can not be said that title had passed out of the landlord by either actual or constructive delivery; and the court did not err in directing a verdict in favor of the landlord. The possession by the tenant of the bill of lading to the fertilizers being thus indisputably explained, the ruling is not in conflict with what was held by this court in Postell v. Avery, 12 Ga. App. 507 (77 S. E. 666).

Judgment affirmed.

Stephens, J., concurs. Bell, J., disqualified.


text:
    17345.
    SOUTHERN RAILWAY COMPANY v. GODFREY.
    Tlie presumption of negligence raised by proof of the killing of the plaintiff’s dog by the running of the defendant’s train was not conclusively rebutted by the evidence introduced by the defendant. The verdict rendered in the plaintiff’s favor by the jury in the justice’s court being authorized by the evidence, the superior court did not err in dismissing the certiorari, by which the verdict was attacked upon the usual general grounds only.
    Justices of the Peace, 35 O. J. p. 883, n. 73.
    Railroads, 33 Cyc. p. 1305, n. 39,
    Decided January 24, 1927.
    Certiorari; from Whitfield superior court — Judge Tarver. March 13, 1926.
    J. J. Copeland, W. M. Sapp, Maddox, Maddox & Mitchell, for plaintiff in error.

      O. R. Hardin, contra.
   Bell, J.

In this action brought in a justice’s court against the railway company, to recover damages for the alleged killing of the plaintiff’s dog, the defendant, after verdict in favor of the plaintiff, carried the case by certiorari to the superior court, attacking the verdict upon the usual general grounds only. The certiorari was dismissed and the defendant excepted.

The evidence introduced by the plaintiff amply authorized the inference that the dog was killed by the defendant’s northbound passenger-train, No. 32, in the afternoon, a little before sundown, on July 11, 1925. The only evidence introduced in rebuttal by the defendant was the testimony of the engineer • and fireman. The engineer testified as follows: “ On this date I left Atlanta on time and arrived in Chattanooga on time, and I think we were on time when we passed Carbondale. We passed Phelps at 6:20 p. m. The track south of Phelps is straight for a little over a half mile. Plaintiff’s 'dog is said to have been killed bétween the 46th and 47th mile-posts, where the track is straight. I ride on the right-hand side of the engine, and my duties are to run the engine and keep a lookout, which is necessary for me to do and which I do in order to keep from-striking something and for the general safety of the train, its passengers, and the general public. If a dog had appeared on the track between the mile-posts mentioned I would have seen it, but on this occasion I saw no dog, because no dog appeared in front of the train. It was up grade at this point and I could have seen a dog for a half mile. I saw no dog on this occasion, and if I had struck and killed a dog there I would have remembered it, if the dog had come on the track on my side of the engine and had been more than fifteen yards in front of it. My information is that dogs sometimes get killed in the rear of the engine when I know nothing about it, but I have never seen one. If the dog came on the track from the fireman’s side, I could not have seen it less than 15 yards.”

The testimony of the fireman was: “I am a fireman pi the Southern Railway Company, between Atlanta and Chattanooga. I reside on Cascade Road, Atlanta, my address being Ben Hill, Georgia. On July 11, Í925, 1 was on passenger-train- No. 32, from Atlanta to Chattanooga, and I think we were on time for we reached Phelps at 6:20 p. m., which was on time. The sun was shining when we reached Phelps. My duties as fireman are to keep steam on the boiler, and, while not doing that, to keep a lookout ahead. My seat is on the left side of the engine. Leaving Carbondale, approaching Phelps, it is down hill, and I always put in a fire there. Approaching a point where it is said the dog was killed, it is up grade, and in going up this grade it is necessary that I fire the engine. Section foreman Camp showed me where the dog was found, and going north it is up grade at this point. I did not see a dog on this occasion and don’t know anything about how it was killed. If I had seen the dog I would have told the engineer.”

In Alabama Great Southern R. Co. v. Buchannon, 35 Ga. App. 156 (132 S. E. 253), this court in a similar case said: “In view of the fact that neither the fireman nor the engineer saw or was conscious of the occurrence at the time, and that their material testimony was largely hypothetical and opinionative, we can not say that the jury were bound to conclude that the employees of the railroad company used ordinary and reasonable care and diligence to discover the dog upon the track and to avoid injuring it.” This language applies so aptly to the rebuttal testimony in the present case, that is, the testimony of the engineer (the fireman’s testimony having little or no probative value), that we adopt it as the expression of our opinion herein. The court did not err in overruling the certiorari.

Judgment affirmed.

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


text:
    17380.
    McGLOTHIN v. UNITED STATES NATIONAL LIFE AND CASUALTY COMPANY.
    1. “Tlie law of this State expressly requires a contract of fire insurance to be in writing, and such a contract is not valid unless it is in writing.” Athens Ins. Co. v. Evans, 132 Qa. 703 (4) (64 S. E. 993) ; Civil Code (1910), §§ 2470, 2499.
    2. Furthermore, in this case there were conditions precedent to the issuance of the policy which were never waived or met, and the policy was never issued. Insurance is a matter of contract, and it affirmatively appears that the company entered into no sort of contract for the insurance claimed.
    3. Where, pending mere negotiations for a policy of insurance, the person on whose life it might or might not have been written dies, the company is not liable on the proposed policy simply because it accepted premiums in advance on the supposition that the policy would be issued. Fowler v. Preferred Ins. Co., 100 Qa. 330 (2) (28 8. E. 398); N. 7. Life Ins. Co. v. Babeoeh, 104 Qa. 67 (1) (30 S. E. 273, 42 L. R. A. 88, 69 Am. St. R. 134) ; Taylor Lumber Co. v. Ciarle Lumber Co., 33 Qa. App. 815 (3) (127 S. E. 905), and cases cited; and compare Qa. Casualty Co. v. Dixie Trust ée. Co., 23 Qa. App. 447, 451 (98 S. B. 414).
    4. It appearing, as a matter of law, that the insurance company was not liable, the judge of the municipal court did not err in directing a verdict in its favor accordingly. The superior court properly dismissed the certiorari.
    Eire Insurance, 26 C. J. p. 45, n. 93.
    Insurance, 32 C. J. p. 1091, n. 16; p. 1115, n. 73; 33 C. J. p. 124, n. 58; p. 131, n. 43.
    Life Insurance, 37 G. J. p. 378, n. 32; p. 381, n. 97; p. 401, n. 46.
    Decided January 24, 1927.
    Certiorari; from Fulton superior court — Judge Humphries.’ March 22, 1926.

      Savage & Crawford, for plaintiff.

      Branch & Howard, E. L. Tiller, for defendant.
   Bell, J.

The exception in this case is to a judgment of the superior court dismissing a certiorari to review a judgment of the municipal court of Atlanta against the plaintiff and in favor of the defendant insurance company. The action was on an alleged policy of insurance in the sum of $550, which was never issued and which indeed ivas never applied for, except orally by the plaintiff, who was to be the sole beneficiary. The plaintiff made application for the policy in behalf of his brother, and paid four weekly premiums in advance. Before this brother, whose life was to be insured, could be located, in order that he might sign the written application for the policy as prepared at the instance of the plaintiff, and be examined in accordance with the requirements of the company, the plaintiff paid four additional weekly premiums. His brother then died without anything else having been done to consummate the contract. The company’s general agent and its examining physician both testified that as to insurance in amounts over $250 the company required the applicant to undergo a satisfactory medical examination as a condition precedent to the issuance of the policy; that they both went to the residence of the person now alleged to have been insured, but were never able to find him, that he was never examined, that he never signed the application, and that no policy was ever issued. The printed form of application, which had been partly filled out, but which awaited the signature of the person on whose life the insurance was wanted, provided that “Medical examination is required when the amount of insurance applied for together with that in force exceeds $250.” Then followed the blanks to be filled in by the medical examiner. Under these was a stipulation, that “Any misrepresentation wilfully made shall render the policy void and that the policy shall not be binding upon the company unless upon its date I shall be alive and in sound health.” Following this was a blank .space for the applicant’s signature. The spaces to be filled in as indicated continued to be blank. The copy of the alleged policy, as attached to the suit, contained two stipulations as follows: “The company assumes no obligation prior to the date hereof,” and “If the insured is not alive and in good health on the date hereof, the liability of the company shall be limited to the return of premiums paid on the policy.” The date, left blank, was not filled in, because the policy had not been issued.

When the company learned of the death of the person on whose life the insurance might have been written, it promptly offered to return the premiums which had been paid. With reference to these premiums the company’s general agent testified: “Mr. Webb kept collecting the premiums and I was holding up the application until I could get Matthews [the person to be insured] examined. 'If he had passed he would have received the policy, but I could not send in his application until he had been examined. . . I don’t know how long we would have continued collecting weekly premiums without examining him, . , We would probably have kept collecting premiums for some time, in the hope of getting him examined.” Webb, the agent who took the “application,” testified that he informed the proposed beneficiary, who was paying the premiums, that his brother would have to be examined.

There was nothing to impeach or discredit any witness who testified. The above facts appear without dispute from the pleadings and the evidence. Under the principles stated in the headnotes, there was, as a matter of law, no liability against the company, and a verdict in its favor was properly directed. It follows that the superior court did not err in dismissing the certiorari.

Judgment affirmed.

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


text:
    17396.
    Hill, executor, v. Hill.
    Decided January 24, 1927.
    Appeal; from Jackson superior court — Judge Stark. April 9, 1936.

      G. A. Johns, Pemberton Cooley, for plaintiff in error.

      J. C. Pratt, J. D. Quillian, contra.
    Executors and Administrators, 24 C. J. p. 237, n. 75.
   Bell, J.

1. Where an estate being administered under a will is kept together for a longer period than twelve months by a suit of the executor for the construction of the will (Hill v. Hill, 161 Ga. 356, 130 S. E. 575), and not by any fault of the testator’s widow, the widow, if there are no debts, will ordinarily be entitled to support from the estate for each year that it is thus kept together. Civil Code (1910), § 4042; Edenfield v. Edenfield, 131 Ga. 571 (130 S. E. 575); Kennedy v. Paulk, 133 Ga. 401 (65 S. E. 852); Woodbridge v. Woodbridge, 70 Ga. 733.

2. Where a widow consumed property of the estate of her deceased husband as a support and accepted advances from the executor for that purpose, and where these transactions occurred prior to the grant of a first year’s support and might have been pleaded in defense thereto, they can not be shown in defense to an application by her for a second year’s support. Fulghum v. Fulghum, 111 Ga. 635 (36 S. E. 602, 37 S. E. 774); Wood v. Brown, 121 Ga. 471 (49 S. E. 295), and cit.

3. Applying these rulings, the award of the second year’s support in this case was authorized, and the trial of the application therefor (in the superior court on appeal) was free from error.

Judgment affirmed.

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


text:
    17402.
    Tuten v. Towles.
    Decided January 24, 1927.
    Petition to remand; from Chatham superior court — Judge Meldrim. April 23, 1926.

      Odom & Tuten, for plaintiff in error. •

      N. J. Norman, I. O. Farthing, contra.
    Certiorari, 11 C. J. p. 212, n. 65; p. 223, n. 51 New.
   Bell, J.

Upon a prior appearance of this case in this court (Tuten v. Towles, 34 Ga. App. 465, 129 S. E. 906), it was held that the trial court erred in overruling the certiorari. Thereafter, on November 9, 1925, the court below entered a judgment making the remittitur from this court the judgment of that court without expressly sustaining the certiorari or remanding the case to the municipal court. On April 23, 1926, the presiding judge, on the application of the defendant in certiorari, and after notice to the plaintiff in certiorari, entered a judgment formally sustaining the certiorari and remanding the case to the municipal court with instructions. To this judgment the plaintiff in certiorari excepted. Held:

1. Assuming (without deciding) that the judgment of the superior court making the remittitur from this court the judgment of that court did not per se have the effect of sustaining the certiorari and of remanding the case to th.e municipal court, the superior court was not without jurisdiction at a subsequent term to pass a formal order sustaining the certiorari and remanding the case with instructions, as was done. See, in this connection, Knox v. State, 113 Ga. 929 (39 S. E. 330); Equity Life Asso. v. Gammon, 119 Ga. 271 (7) (46 S. E. 100); Rusk v. Hill, 121 Ga. 378 (1) (49 S. E. 261).

2. “When the only error alleged in a petition is that the verdict therein complained of is contrary to the law and to the evidence, and it appears that the evidence demanded a verdict for the plaintiff in certiorari, the superior court should, of course, sustain the certiorari; but it is erroneous in such a ease, though there be no conflict in the evidence, to render a final judgment in his favor. This is so for the reason that in such a case the error complained of is not ‘an error in law which must finally govern the case,’ and further, because it could not be known with certainty that the evidence on another trial would be the same.” Holmes v. Pye, 107 Ga. 784 (33 S. E. 816). The facts of the present case sufficiently appear in the statement accompanying the former decision. Applying to them the principle just quoted from Holmes v. Pye, the superior court did not err in refusing to render final judgment in favor of the plaintiff in certiorari, nor in remanding the case to the municipal court for further proceedings. Civil Code (1910), § 5201; State v. Johnson, 21 Ga. App. 320 (3) (94 S. E. 325); Whiddon v. Atlantic Coast Line R. Co., 21 Ga. App. 377 (4) (94 S. E. 617); Hancock v. Allen, 29 Ga. App. 611 (3) (116 S. E. 321), and cases cited.

Judgment affirmed.

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


text:
    17407.
    PORTER FERTILIZER COMPANY v. BREWER.
    1. While it is true that where the consideration of a promissory note is so stated therein as to make it a part of the terms and conditions of the contract, it is not permissible to set up another and different consideration for the purpose of showing a failure of the latter (Simmons v. Harvester Oo., 22 Ga. App. 358 (2), 96 S. E. 9), “it is still competent to show that the true' basis of the contract was without any actual consideration ■ of any sort whatsoever, and that the resultant promise is for that reason wholly void.” Rheney v. Anderson, 22 Ga. App. 417, 419 (96 S. E. 217).
    2. Assuming that the note sued on in this case so expressed the consideration as to make it a part of the terms and conditions of the instrument, so that the defendant maker could not have pleaded that the consideration was “different from that expressed,” the answer as filed constituted, as against a mere oral motion to strike, a good plea of want of consideration, or that the note was a nudum pactum, and there was no error in refusing to strike it. Maclcin'v. Blalock, 133 Ga. 550 (66 S. E. 265, 134 Am. St. R. 120); Knight Oo. v. Calhoun, 33 Ga. App. 312 (2) (125 S. E. 790); Stewart v. Hardin, 24 Ga. App. 611 (1) (101 S. E. 716); Krueger v. Simmons, 22 Ga. App. 2,10 (1) (95 S. E. 718) ; Jones v. Kertiliiier Go., 21 Ga. App. 170 (94 S. E. 81). If the ruling here made is not in harmony with the decision in Discon v. Bond, 18 Ga. App. 45 (2) (88 S. E. 825), it seems to be controlled by the decision of the Supreme Court in Mackin v. Blalock, supra; and this court is bound by the decisions of the Supreme Court, in preference to its own decisions, as precedents.
    3. The defendant maker having testified that he himself prepared the note and was aware of its contents, it was a violation of the parol-evidence rule for the court, over timely and appropriate objections, to permit him to testify that he thought he was making the note to another, and had rio idea that he was making it to the plaintiff payee. See special concurrence in Rheney v. Anderson, supra. .
    4. A consideration need not be a benefit accruing to the promisor. Civil Code (1910), § 4242; Knight Oo. v. Oalhoun, supra. There being in this case evidence to the effect that the defendant maker executed the note upon sufficient consideration, although the benefit of such consideration may have accrued to another, the court erred in charging the jury as follows: “If you believe from the evidence in the case that the defendant Brewer signed the note to the Porter Fertilizer Company, and that he signed the note and received nothing — no consideration, nothing whatever for the signing of the note, then I charge you that the plaintiff would not recover, and your finding would be for the defendant.”
    5. For the errors pointed out in the two preceding paragraphs, the court erred in refusing the defendant’s motion for a new trial.
    Decided January 24, 1927.
    Bills and Notes, 8 C. J. p. 214, n. 1(1
    Contracts, 13 C. J. p. 316, n. 91.
    Courts, 15 C. J. p. 920, n. 8.
    Evidence, 22 C. J. p. 1165, n. 77^ p. 1245, n. 22 New.
    Pleading, 31 Cye, p. 663, ji, 8J,

      Complaint; from city court of Hall county — Judge Sloan. . April 24, 1926.

      B. P. Guillard Jr., J. O. Adams, for plaintiff.

      A. C. Wheeler, W. V. Lance, for defendant.
   Bell, J.

Porter Fertilizer Company brought suit against E. C. Brewer as principal, and D. F. Small as security, upon a promissory note payable to the plaintiff, and containing with reference to its consideration the following statements: “The consideration of this note is commercial fertilizer sold me by Porter Fertilizer Company. They expressly refuse to make any warranty of the same, or any representation as to its quality or value, leaving me to rely solely upon the fact that the laws of this State have been complied with. I accept said fertilizer on these terms. . . I buy this fertilizer for my own use, or to be used on lands cultivated by me.” The defendant pleaded that the note “was wholly and totally without any consideration whatever, and that no consideration moved between the parties thereto.” The court overruled the plaintiff’s motion to strike the defendant’s answer for insufficiency; and the trial resulted in a verdict in favor of the defendant. The court denied the plaintiff’s motion for a new trial, and the plaintiff excepted, assigning error upon'the refusal of this motion and also upon the previous judgment overruling the motion to strike the defendant’s answer, to which judgment exceptions had been preserved pendente lite. The other facts, including those set up in the special grounds of the motion for a new trial, are sufficiently shown in the headnotes. Under the rulings therein made, the court erred in the admission of testimony, and also in giving a certain charge to the jury. For these reasons the plaintiff was entitled to a new trial.

Judgment reversed.

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


text:
    17428.
    Houston v. Howell, sheriff.
    Sheriffs and Constables, 35 Cyc. p. 1641, n. 56; p, 1828, n, 94 New; p. 1830, n. 17; p. 1853, n. 13 New, 15.
   Bell, J.

1. In a suit or rule against a sheriff for failure to execute mesne as distinguished from final process, the burden is ordinarily upon the plaintiff to show how, why, and to what extent he has been injured by the officer’s default, the plaintiff having no aid from presumption, and being “only entitled to recover such damages as he can show he has sustained.” Crawford v. Andrews, 6 Ga. 247 (1); Beck & Gregg Co. v. Knight, 121 Ga. 287 (2) (48 S. E. 930, 3 L. R. A. (N. S.) 420, 2 Ann. Cas. 9). A somewhat different rule applies, however, in an action against a sheriff for failure to execute the (mesne) bail process in a trover case, since, in cases of the latter class, when it appears that the officer has committed the default and that the plaintiff in the original suit has obtained a final money judgment against the defendant therein, the presumption is that the officer’s breach has damaged the plaintiff to the extent of the judgment, and the burden is shifted to the officer to exonerate himself, as in cases of failure to execute final process. “The eventual condemnation-money would seem the proper measure of the sheriff’s liability; and this measure ought to apply equally to a rule against him and to an action on the case. When judgment for a specific sum was recovered in a trover suit, the eventual condemnation-money was fixed; and the sheriff, as he had failed to seize the property, should have had the defendant in jail, or, if not, should have had in court a bond with security to enable the plaintiff to enter his judgment jointly against the defendant and the security, and to have execution against both without further proceeding.” Snell v. Mayo, 62 Ga. 744, 746, distinguishing Craivford v. Andreios, supra, in which the principle laid down was the same as that ruled in the later ease of Beck & Gregg Co. v. Knight, supra.

Decided January 24, 1927.

Money rule; from city court of Blakely — Judge Sheffield. May 17, 1926.

W. I. Geer, for plaintiff.

A. H. Gray, C. L. Glessner, for defendants.

2. In a proceeding against a sheriff for such default in a trover case, the officer is not relieved of liability merely because, by virtue of an execution issued upon the money judgment in the plaintiff’s favor in the trover case, he has made sales in part of property which was involved in the trover suit and in part of property which belonged to the defendant and was not so involved, and has thus brought into court a sum of money equaling or exceeding the amount of such judgment, where the fund, so far as derived from the sale of property belonging to the defendant, was subject to another lien against the defendant, superior in rank to that of the plaintiff, and where the holder of such superior lien was entitled to, and had awarded to him, so much of the fund as to leave the plaintiff’s lien partially unsatisfied. Griner v. Smith, 26 Ga. App. 319 (1) (106 S. E. 20); Edwards v. Boyd Co., 136 Ga. 733 (72 S. E. 34); DeLongchamp v. Hicks, 25 Ga. 200; Frick Co. v. Davis, 80 Ga. 482 (5 S. E. 498); Civil Code (1910), §§ 4517, 5953.

3. Applying the above principles to the facts of this case, the court’s rulings in the admission of evidence were erroneous in so far as they failed to accord with the proposition stated above; and it was further error to direct a verdict in favor of the officers and against the plaintiff as to any part of the plaintiff’s'claim. It follows that the. plaintiff was entitled to the grant of a new trial.

Judgment reversed.

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


text:
    17432.
    CENTRAL OF GEORGIA RAILWAY CO. v. HEARD.
    In tliis action against a railway company to recover damages for personal injuries to the plaintiff, occasioned by a collision between the automobile in which she was riding and one of the defendant’s trains, standing at a public grade crossing, it can not be said, as a matter of law, that the petition failed to show negligence by the defendant, nor that it affirmatively appeared therefrom that the plaintiff, if negligent, was so negligent as to be barred from a recovery, nor that the collision should be attributed to negligence on her part as the proximate cause. The petition set forth a cause of action, and the court did not err in overruling the general demurrer thereto. See, in this connection: Davis v. Smiley, 33 Ga. App. 508 (2) (126 S. E. 904); Central &o. By. Co. v. Burton, 33 Ga. App. 199 (125 S. E. 868) ; Elberton &c. B. Co. v. Thornton, 32 Ga. App. 259 (2) (122 S. E. 795) ; Woolworth Co. V. Wood, 32 Ga. App. 575 (124 S. E. 110) ; Martin v. McAfee, 31 Ga. App. 690 (2) (122 S. E. 71) ; Savannah Electric &c. Co. v. Nance, 31 Ga. App. 632 (121 S. E. 690; Mattox v. Lambright, 31 Ga. App. 441 (120 S. E. 685) ; Borne By. <& Lt. Co. v. King, 30 Ga. App. 231 (2) (117 S. E. 464) ; Wynne v. So. Bell Tel. cC-e. Co., 159 Ga. 623 (126 S. E. 388).
    Decided January 24, 1927.
    Damages; from Chatham superior court — Judge Meldrim. April 15, 1926.
    Application for certiorari was denied by the Supreme Court.
    This case is here on exceptions to the overruling of a general demurrer to the petition. The suit was to recover damages for personal injuries to the plaintiff, occasioned by the collision of an automobile in which she was riding and a freight-train of the defendant, standing at a public grade crossing. The petition contained substantially the following allegations: The plaintiff, with
    other persons, went in an automobile from the city of Savannah to a point on the Augusta road north of Sylvania, for the purpose of conveying to Mr. and Mrs. Alexander, who had been detained because of an automobile accident, certain necessary parts for the repair of their car. When the plaintiff and the others with her were returning to Savannah, she was sitting in the front seat of the automobile, at the steering wheel, and was driving. About 3:30 in the morning of October 19, 1925, the automobile was proceeding along Bay Street Extension in the city of Savannah from the direction of Augusta. Bay street is one of the main streets of the city and is the highway from Savannah to Augusta and intermediate points, and is also the highway which leads to and from the new bridge that crosses the Savannah river at Port Wentworth, and which connects Georgia with South Carolina. The injury to the plaintiff happened at the railroad crossing on Bay Street Extension, known as crossing No. 4. This crossing is frequented by the public in passing to and from the business and banking district of Savannah, and is about one mile from the city hall of Savannah. It is one of the most generally frequented railroad crossings in the city. The night was intensely dark and was misty and foggy, and for this reason the plaintiff was driving with care and caution along Bay Street Extension at a rate of speed not exceeding fifteen miles per hour. While proceeding in this careful manner the machine was nearing the said crossing, but the plaintiff was not aware that she was in the immediate vicinity of the crossing; and in the exercise of ordinary care she could not have so known, as the defendant had not provided any means of warning hereof her approach toward the crossing. When the automobile was not more than 10 feet distant there suddenly loomed in front of it the bulk of a freight-car of a train of about thirty freight-ears standing on the third track of the crossing and blocking it. In order to avoid collision with the box-car, the automobile was swerved toward the right, and the plaintiff endeavored to stop the' automobile before it left the paved highway, but was unable to do so, and it left the paved highway and proceeded in a direction parallel with the boxcar, and side-swiped it; and because of the impact the plaintiff received described injuries. She had no notice or warning of the presence of the box-car that was blocking the crossing, until she was within about ten feet of the same. An electric street-lamp hung over the street, about fifteen feet above the pavement and about twenty feet west of the box-car, but did not apprize her of the presence of the box-car, for, because of the position in which it was hung and the misty foggy morning and the intense darkness, the lamp, instead of illuminating ahead of the automobile, had the effect to blind her, as does the glare of the headlights of an approaching automobile.

      Railroads, 33 Cyc. p. 1053, n. 86, 88.

      The petition further alleged: ‘ The defendant blocked said crossing No. 4 with its standing train of box-cars and the attached engine, for more than five minutes, and, in so. blocking the crossing, was violating a public ordinance of the city of Savannah, as follows: “1417. (1114.) Railroads not to obstruct street crossings.
      It shall be unlawful for any railroad company to permit the train, cars, car or engine of said company to remain stationary or standing for longer than the space of five minutes on any street crossed by the railroad track of said company, or to obstruct in anywise said street crossing for a longer time than five minutes; and further it shall be unlawful for any railroad company to permit any train, cars, car or engine of said company to remain stationary or standing in front of the entrance of any store for a longer time than five minutes so as to prevent access to the said store, except only when a car or cars are being used for the owner or occupant of said store in the business connected therewith.” The defendant 'did not have and maintain, on each side of its tracks at said crossing, gates to be approved by the mayor, or a watchman at each track, and, in failing to do so, was violating a public ordinance of the city as follows: “1419. (1116.) G. R. R. crossing on Bay Street extended to keep gates. The Central of Georgia Eailroad Company which crosses by its tracks Bay Street as extended in the city of Savannah is hereby required to place and maintain, on each side of their tracks at said crossing, gates to be approved by the mayor, or a watchman at each track.”
    The allegations of negligence are as follows: (a) The defendant blocked a public street of the city of Savannah with a train of box-cars longer than five minutes, contrary to the ordinance heretofore recited. (&) The defendant failed to place and maintain on either side of its tracks, at said crossing No. 4, gates to be approved by the mayor, or watchmen at each track of said crossing, contrary to the ordinance heretofore recited, (c) Defendant failed to have and maintain an electric bell, gong, or other signal apparatus which would by sounding apprize persons approaching the crossing of the presence of a train standing upon or passing over the crossing, (d) Defendant failed to have the electric light, which was supposed to illuminate the crossing and show to persons on the highway any obstruction on the crossing, elevated to such position as -that the light, under the atmospheric conditions and the darkness then and there prevailing, would not blind persons when nearing the crossing. (e) Defendant failed to provide a red or other colored light which would have penetrated the mist and darkness and would have apprized petitioner of the presence of the box-car. (/) Defendant failed to hail or otherwise warn the driver of tlie car as she approached the crossing, and thus apprize her of the danger which confronted her.

      T. M. Cunningham Jr., H. W. Johnson, for plaintiff in error.

      Oliver & Oliver, John Z. Ryan, contra.
   Bell, J.

(After stating the foregoing facts.)

The plaintiff in error relies mainly upon the case of Davis v. Brinson, 32 Ga. App. 37 (122 S. E. 643). In the petition in that case, however, there was no allegation, as there is here, as to the fog and other weather condition, and as to the manner in which the plaintiff was affected thereby. From all the facts appearing, we can not say that the railway company was not negligent in at least one or some of the particulars alleged, or that the plaintiff, if negligent, was so negligent as to be barred from a recovery, or that it affirmatively appears that the accident was attributable to negligence on the part of the plaintiff as the proximate cause. It is our opinion that the averments of the petition make a case for a jury, and therefore that the superior court properly overruled the general demurrer.

Judgment affirmed.

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


text:
    17433.
    17434.
    17435.
    Central of Georgia Railway Company v. Nisbet. Central of Georgia Railway Company v. Harris. Central of Georgia Railway Company v. Smith.
    Decided January 24, 1927.
    Application for certiorari ivas denied by the Supreme Court.
    For names of counsel, see the case cited above.
   Bell, J.

These cases are controlled by the decision in the companion case of Central of Georgia Railway Co. v. Heard, ante, 332.

Judgment affirmed.

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


text:
    17478.
    ALLEN v. DUVAL MOTOR COMPANY.
    A defendant in fi. fa. can not by affidavit of illegality set up an unliquidated demand in liis favor against tlie judgment demand of tlie plaintiff in fi. fa., notwithstanding the plaintiff in fi. fa. may neither reside in nor own property in this State.
    Executions, 23 O. J. p. 546, -n. 42; p. 547, n. 59.
    Decided January 24, 1927.
    Affidavit of illegality; from city court of Tifton — Judge Bennet. May 14, 1926.

      C. A. Christian, R. D. Smith, for plaintiff in error.

      Ellis, Mitchell & Ellis, Steve F. Mitchell, contra.
   Bell, J.

.Duval Motor Company recovered a judgment against T. C. Allen for a certain amount as balance of the purchase-price of an automobile. An execution based on this judgment was levied upon the defendant’s property. The defendant paid the execution in full, with the exception of $100, and interposed an affidavit of illegality for the purpose of arresting the fi. fa. as to this balance. The affidavit alleged: In the sale of the automobile the plaintiff agreed “to service said car for a period of four months, and that, inasmuch as the deponent was not accessible to the service station of the said Duval Motor Company, that they agreed to pay to the nearest service station located to deponent the sum of $100 to have such service made, which was the McCaskill Auto Company, and which was a part of the consideration of the purchase of said car;” but after judgment against the defendant the plaintiff withdrew the service by notifying McCaskill Auto Company to discontinue it. The defendant, at the time of the trial in which the judgment was rendered against him, had no knowledge that the plaintiff “would not carry out its contract of servicing said car for the period as aforesaid.” The service which the plaintiff contracted to furnish the defendant was reasonably worth $100. The plaintiff is a non-resident of the State of Georgia and has no property within this State “within the knowledge of the affiant.” The court sustained the plaintiff’s general demurrer to the affidavit of illegality, and the defendant excepted.

Even though the defendant did not know, prior to the judgment against him, that the plaintiff would discontinue the service which the plaintiff had promised to furnish for the automobile sold to the defendant, and even though the plaintiff may be liable to the defendant for a bleach of such promise, the court did not err in striking the affidavit of illegality. The defendant attempted to set up an unliquidated demand in his favor against a judgment demand in favor of the plaintiff in fi. fa., and this can not be done by an affidavit of illegality, notwithstanding the plaintiff in fi. fa. may not be a resident of this State and may have no property in this State. Leavel v. Frey, 133 Ga. 723 (66 S. E. 916); Register v. Southern States Phosphate &c. Co., 157 Ga. 561, 567 (122 S. E. 323); Wood v. Rome, 24 Ga. App. 115 (1 a) (100 S. E. 74). The remedy by an affidavit of illegality against an execution is purely statutory, and can not be employed to assert a right except as the statute provides. Cochran v. Whitworth, 21 Ga. App. 406 (2) (94 S. E. 609). There is no statute in this State by which an affidavit of illegality to a fi. fa. may ever be employed to offset a demand against the plaintiff for the breach of some promise or agreement.

Judgment affirmed.

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