text:
    18037.
    ENDSLEY v. GEORGIA RAILWAY & POWER CO.
    Where one sustains an injury to his person and also damage to his property from the same act or acts of negligence of another, two distinct causes of action arise in favor of the person so aggrieved, and a recovery for the damage to his property is not a bar to a subsequent action for the injury to his person.
    Actions, 1. C. J. p. 938, n. 92; p. 939, n. 22; p. 1055, n. 53, 54; p. 1119~ n. 29.
    Assignments, 5 C. J. p. 887, n. 64; p. 889, n. 74, 75.
    Damages, 17 G. J. p. 712, n. 56.
    Judgments, 34 O. J. p. 835, n. 79; p. 902, n. 92. Limitations of Actions, 37 C. J. p. 774, n. 57; p. 779, n. 33.
    Statutes, 36 Cyc. p. 1160, n. 28, 30.
    Decided November 21, 1927.
    Action for damages; from Fulton superior court—Judge Humphries. February 5, 1927.
    Application for certiorari was made to the Supreme Court.

      G. Seals Aiken, for plaintiff.

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

In a single transaction and by the same acts of negligence on the part of the defendant, the plaintiff sustained injury to her person and also damage to her automobile. On March 25, 1926, she brought suit in the municipal court of Atlanta for the damage to her automobile, and on May 18, 1926, recovered therein a verdict for $50. On March 26, 1926, she filed suit in Fulton superior court for $15,000 for her alleged personal injuries. In this suit the defendant, at the May- term, 1926, filed a general denial, but on September 3, 1926, after the judgment for the property damage, it pleaded by amendment that the two suits were based on a single cause of action, and that the judgment in the former suit was a bar to the further prosecution of the latter. The plaintiff demurred to the defendant’s plea as thus amended, and, after argument of counsel, the court passed the following order: “The within and foregoing plea in bar having been submitted to the court upon the law and the facts, and after argument of counsel, it is ordered by the court that said plea in bar be sustained and said case be dismissed.” To this ruling the plaintiff excepted.

The question for decision is whether the same acts of negligence causing injury both to the plaintiff’s person and to her property give rise to a single cause of action or to two. The exact and precise question has never been the subject of a direct ruling by either of the appellate courts of this State, although it has been considered in a number of other jurisdictions with opposing conclusions. Even the Federal courts do not seem to be clearly in accord upon the point. In Southern Ry. Co. v. King, 160 Fed. 332 (87 C. C. A. 284), a case arising in the State of Georgia and decided by the United States Circuit Court of Appeals for the fifth district, there is some language to the effect that injuries to the person and to the physical property of the plaintiff, resulting from the same tort, constitute a single cause of action and should be presented in the same suit. On the other hand, in Boyd v. A. C. L. Ry. Co., 218 Fed. 653, 656, decided by Judge Speer of the southern district of Georgia, it was held that “where plaintiff suffered a personal injury and also the destruction of his automobile in a railroad-crossing accident, it was the injury and not the negligent act alone which gave rise to the right of action; and hence payment of a judgment recovered in a separate action for the destruction of the automobile was no bar to a subsequent action for plaintiff’s personal injuries.” The facts of the Boyd case, which also arose in this State, were identical with the facts of the instant case as regards the principles of law to be applied, while those in the King case were entirely different. In the latter case the question was whether the injury to Mrs. King, the plaintiff, and the homicide of her husband, both resulting' from the same act of negligence on the part of the defendant, constituted a single cause of action in favor of the plaintiff. The question which is presented in the present case was not involved, and all reference thereto in that case was obiter. The weight of authority in America seems to be to the effect that the injuries to the person and to the property in a case of this sort constitute a single cause of action, but after a careful examination of the authorities we are unable to assent to this view, although the question is admittedly a troublesome one on either side of which there is room for plausible argument. Our Civil Code (1910), § 5521, provides: “All claims arising ex contractu between the same parties may be joined in the same action, and all claims arising ex delicto may in like manner be joined. The defendant may also set up, as a defense, all claims against the plaintiff of a similar nature with the plaintiff’s demand.” As was said in the Boyd case, this statute is merely permissive, for had the legislature determined to make the joinder obligatory, the word “shall,” instead of “may,” would doubtless have been used.

In the laws of this State there is a recognized distinction between the right to recover for injuries to property and for injuries to the person. The legislature has prescribed different periods of limitation within which suits may be brought for the respective injuries (Civil Code (1910), §§ 4496, 4497); and, furthermore, a claim for damage to property is assignable, while a claim for personal injuries is not. Sullivan v. Curling, 149 Ca. 96 (99 S. E. 533, 5 A. L. R. 124). This would indicate that they are separate and distinct causes of action, to be presented in separate suits except for the privilege of joinder accorded by section 5521 of the code. The same evidence would establish the negligence of the defendant in both instances, but the measures of the damage are entirely dissimilar, requiring different instructions to the jury upon that subject. The evidence of the personal injury would ordinarily be immaterial and inadmissible in a suit alone for the property damage, and, conversely, evidence of the property damage would have no relevancy in the claim for personal injuries. Thus, in a suit to recover on one of such claims alone, the other would not be in issue and might not be heard of. A termination of the one cause could, perhaps, be regarded as an‘estoppel by judgment as between the parties on the question of their respective negligence or diligence, but this is not to say that it would bar a suit for the other injury. See Lyons v. Empire Fuel Co., 262 Fed. 465; Atchison etc. Ry. Co. v. Nelson, 220 Fed. 63 (135 C. C. A. 621). If the former action for property damage had resulted in a verdict in favor of the defendant, the defendant might have been able to set up such adjudication to estop the plaintiff on the issue of its negligence, depending upon the pleadings and the defense made. See Allen v. Allen, 154 Ga. 581 (3) (115 S. E. 17); New v. Quinn, 31 Ga. App. 102 (3) (119 S. E. 457); Farmer v. Baird, 35 Ga. App. 208 (132 S. E. 260); Fleisher v. Detroit Motor Co., 165 N. Y. Supp. 245. But in our opinion a judgment for or against the plaintiff in a suit for the damage to her automobile would not have adjudicated the ultimate question of her right to recover for her personal injuries. It would not establish either that she was injured in her person or that she was not, whereas in a suit on the latter it would be proper to show both the injury and the extent thereof. Once past the preliminary question of the negligence or diligence of the parties, each case would have to stand upon its own facts and circumstances, and under the code the plaintiff would be permitted, but not required, to join the same in one suit.

The variant conclusions which have been reached by the different courts seem to have resulted, in the main, from divergent views as to what is the cause of action, some of the courts treating it as consisting of the injury inflicted, and others regarding it as the negligent or wrongful act causing the injury. In our construction of the statutes and decisions in this State, the cause of action is composed not simply of the negligent or wrongful act of the opposite party, but necessarily includes the damage which the injured party sustains. The code provides that for every violation of a contract express or implied and for every injury done ly another to person or property, the law gives a right to recover and a remedy to enforce it, and that damages are given for the injury, sustained. Civil Code (1910), §§ 3652, 4390, 4502. It is true that if the injury be small or the mitigating circumstances be strong, nominal damages only are given; and in some cases damages are awarded when no actual damage whatever has been proved. But in all cases the element of damage must enter in some way before a suit is maintainable in tort, and so it is provided that general damages are such as the law presumes to flow from any tortious act and may be recovered without proof of any amount. Civil Code (1910), § 4507; Nat. Exchange Bank of Augusta v. Sibley, 71 Ga. 726. “In a popular sense, the word 'damage’ does frequently mean depreciation in value, whether such depreciation is caused by a wrongful or a lawful act; but in statutes or other legal instruments giving compensation for 'damages’ the word always refers to some actionable wrong—some loss, injury, or harm which results from the unlawful act, omission, or negligence of another.” Austin v. Augusta Terminal Ry. Co., 108 Ga. 671, 674 (34 S. E. 852, 47 L. R. A. 755). The damage, therefore, in this State is the gravamen of the action, and hence, in a case of this sort, the injury to the plaintiff’s person and the damage to his property constitute different causes. There was, according to the pleadings in this case, a violation of two primary rights, one involving the plaintiff’s person and the other her property. Black’s Law Dictionary, 1045. “The test of whether more than one cause of action is stated in a complaint is whether there is more than one distinct primary right or subject of controversy presented for enforcement or adjudication and not whether there are different kinds of relief prayed or objects sought.” 1 C. J. 1055, 1056; A. C. L. R. Co. v. Inabinette, 32 Ga. App. 246, 250 (122 S. E. 902). “The same act may violate any number of rights, but each such violation would constitute a different wrong. If such violations or wrongs are distinct and separate, even though resulting from the same act, they would give rise to different causes of action. . . 'The thing which in contemplation of law as its cause becomes a ground for action is not the group of facts alleged in a declaration, bill, or indictment, but the result of these in a legal wrong, the existence of which, if true, they conclusively evince.’ ” City of Columbus v. Anglin, 120 Ga. 785 (5) (48 S. E. 318). “Relatively to the law of pleading, a cause of action is some particular legal right of the plaintiff against the defendant, together with some definite violation thereof which occasions loss or damage. . . The outcome under the law of any state of facts whatever which will embrace a cause of action may be expressed as follows,' the first proposition affirming the duty, the second the breach, and the conclusion the right to recover: It was the defendant’s legal duty to the plaintiff to do so and so; (or not to do so and so as the case may be) : He did not do so and so; (or he did so and so as the case may be), and thereby caused the plaintiff such and such loss or damage: Therefore the plaintiff is entitled to recover for the reparation of his loss or for his proper compensation in damages. The office of the declaration is to state or describe the material out of which, viewed in the light of the law applicable to the ease, a logical syllabus like this can be constructed in advance of the trial, for justification by evidence when the trial takes place. Unless the plaintiff •can and will allege beforehand that such material exists [italics ours], no trial ought to be had, for it would be useless.” Ellison v. Ga. R. Co,, 87 Ga. 691 (4), 700 (13 S. E. 809).

In the early case of Pearson v. Reid, 10 Ga. 580, the original petition was in two counts, in one of which it was averred that the plaintiff was in the quiet possession and enjoyment of a certain mill on a river in Putnam county, and that the defendant wrongfully kept up and continued a certain dam on the same river, below the mill of the plaintiff, with the result that the water of the river rose upon and obstructed the plaintiff’s mill, to his damage in the sum sued for. The plaintiff at a later term proposed to amend the suit by averring in a third count that the defendant, by keeping up and continuing the same dam, had caused the water to overflow the plaintiff’s land and to become stagnant in the low grounds, “killing large quantities of timber and destroying the health of [plaintiff’s] slaves.” The Supreme Court held that the amendment was not allowable, because it set forth a different injury and a new and distinct.cause of action. The decision in that case was cited with approval in the Anglin case, supra, and appears, by analogy at least, to be controlling in the case at bar. It would seem that the Pearson case is even stronger 'than the case under consideration, for in that case the only injuries complained of were in reference to the plaintiff’s property, no injury to his person being mentioned. So we hold that as regards the instant suit to recover for personal injury, the plaintiff’s prior suit and recovery for the damage to his automobile constituted “another cause or controversy.” See Maxwell v. Harrison, 8 Ga. 61 (52 Am. D. 385). As suggested by counsel for the defendant in error, it has perhaps been the practice in this State for a plaintiff in a single count to claim damage both to his person and to his property for a single act or identical acts of negligence on the part of the defendant. However, we have found no decision dir'ectly approving this practice. What has been the usual practice in the courts would ordinarily be persuasive as to what is proper, but it is not conclusive or decisive, in the absence of a direct and positive ruling upon the point.

Among the courts which have held differently from the conclusion which we reach in this case are those of Massachusetts, Maryland, Connecticut, Illinois, Missouri, Minnesota, Kentucky, Tennessee, and Washington, as shown by the following citations: Doran v. Cohen, 147 Mass. 342 (17 N. E. 647); Baltimore R. Co. v. Ritchie, 31 Md. 191; Seger v. Barkhamsted, 22 Conn. 295; Chicago etc. R. Co. v. Ingraham, 131 Ill. 659 (23 N. E. 350); Lamb v. St. Louis etc. R. Co., 33 Mo. App. 489; King v. Chicago etc. R. Co., 8 Minn. 83 (82 N. W. 1113, 50 L. R. A. 161, 81 Am. St. R. 238); Coles v. Ill. R. Co., 120 Ky. 686 (87 S. W. 1082); Mobile R. Co. v. Matthews, 115 Tenn. 172 (91 S. W. 194); Sprague v. Adams, 139 Wash. 510 (247 Pac. 960, 47 A. L. R. 529). The rule which we think is the proper one appears to have been first announced in the English case of Brunsden v. Humphrey, L. R. 14 Q. B. Div. 141, and has been recognized in later cases .of the sam§ jurisdiction. Darley Main Co. v. Mitchell, L. R. 11 App. Cas. 144; Macdougald v. Knight, L. R. 25 Q. B. Div. 8.

In the well-considered case of Reilly v. Sicilian Paving Co., 170 N. Y. 40 (62 N. E. 772, 57 L. R. A. 176, 88 Am. St. R. 636), the Court of Appeals of New York said: “The argument of those courts which maintain that an injury to person and property creates but a single cause of action is that, as the defendant’s wrongful act was single, the' cause of action must be single, and that the different injuries occasioned by it are merely items of damage proceeding from the same wrong; while that of the English court is that the negligent act of the defendant in itself constitutes no cause of action and becomes an actionable wrong only out of the damage which it causes.” This is a statement of the line of cleavage to which we referred above, and while the court in the Reilly case questioned the conclusiveness of either argument, and placed its ruling .upon the “difference between the rules of law applicable to injuries of the person and those relating to injuries to property/’ especially on the questions of limitations, abatement and survival, and the assignability of claims, the court observed in the course of its opinion that “the history of the common law shows that the distinction between torts to the person and torts to the property has. always obtained,” and that, as pointed out in the Brunsden case, “there is no authority in the books for the proposition that a 'recovery for trespass to the person is a bar to an action for trespass to goods, or vice versa.” The ruling in the Reilly case was that “A judgment for the plaintiff in an action for injury to his vehicle through negligent obstruction of a highway is no bar to another action for injury to his person arising out of the same accident.” The Court of Errors and Appeals of New Jersey reached the same conclusion in Ochs v. Public Service Co., 81 N. J. L. 661 (80 Atl. 495, 36 L. R. A. (N. S.) 240, Ann. Cas. 1912D, 255). See the note in 50 L. R. A. 161, collecting cases on both sides of the question.

It is not without some doubt and hesitation that we differ with the learned judge of the court below upon the very abstruse question raised for decision. However, for the reasons stated above, we are constrained to the view that he erred in not striking the defendant’s plea in bar. As above stated, one of the important considerations is whether in this State the cause of action must necessarily include the damage, or whether it is simply the antecedent act of negligence or breach of duty. If we have properly construed the law upon that point the matter would end there,although there are other principles, to which we have, adverted, to be found in our laws which have contributed to persuade Us to the conclusion stated.

It is perhaps true also that if the plaintiff had died without having brought suit for either injury, different rules of law would have been applicable on the question of abatement and survival of the respective claims; but since our conclusion is supported by other reasons which we deem sufficient, and since that question might prove no less difficult of solution than the main question, we omit it from consideration in this case.

Judgment reversed.

Jenlcins, P. J., and Stephens, J., concur.


source: Caselaw Access Project

author: Jenkins, P. J.

license: Public Domain

text:
    18038.
    Jones, administrator, v. Southern Railway Company, et al.

    Appeal and Error, 3 O. J. p. 1370, n. 32; p. 1372, n. 41. Dismissal and Nonsuit, 18 O. J. p. 1187, n. 60. Railroads, 33 Cyc. p. 769, n. 75; p. 770, n. 77; p. 869, n. 45:
    Decided November 21, 1927.
    Action for damages; from Fulton superior court—Judge E. D. Thomas. January 81, 1987.

      E. B. Hill, V. E. Adams, for plaintiff.

      McDaniel & Neely, for defendant.
   Jenkins, P. J.

1. Under the ruling in Lowe v. Payne, 156 Ga. 312 (118 S. E. 924), unless it is specifically made to appear that the failure of the servants of a railroad company to comply with a proved duty to anticipate the presence of persons upon the company’s track at the time,and place at which the trespasser was killed, was not only negligence, but, under the particular facts and circumstances, amounted to wantonness, or unless the faetp indicate that the servants of the defendant were in other respects guilty of wilful or wanton misconduct contributing to the homicide, the failure of the deceased trespasser to exercise ordinary care for his own safety, in knowingly and voluntarily exposing himself to imminent peril upon the tracks of the defendant company, would bar a recovery on account of his homicide.

2. The facts of the instant case are very similar to those indicated in Atlantic Coast Line R. Co. v. Fulford, 159 Ga. 812, 33 Ga. App. 631 (127 S. E. 274, 812). Here, as in that case, the action is grounded upon mere negligence, the plaintiff in the ease at bar having specifically stricken from his petition all allegations charging that the acts of negligence set forth. amounted to wilful or wanton misconduct on the part of the defendant. Wilful or wanton negligence on the part of the defendant being essential to a recovery, and the plaintiff, by his own interpretation of his petition, having eliminated any possible construction that the facts narrated were intended to set forth wilful or wanton misconduct, and it not appearing that,' even in the absence of such interpretation by the plaintiff, they could properly be so adjudged, the court did not err in granting a nonsuit.

3. The exception to the refusal of the court to admit certain evidence offered by the plaintiff for the stated purpose of showing the number of persons counted by a witness as passing over the track where the homicide occurred, within a stated period of time, is insufficient to present any question for determination by this court, since it nowhere appears from the record at what time, with reference to the homicide, the event sought to be proved occurred, and the only assignment of error is that to the ruling made the plaintiff “then and there excepted, now excepts, and assigns the same as error.”

Judgment affirmed.

Stephens and Bell, JJ., concur.


author: Bell, J.

text:
    18065.
    WALKER v. INDUSTRIAL STORES COMPANY.
    1. In a suit on an account in a justice’s court, to which, the defendant filed a special demurrer upon the ground that the account was not itemized nor set forth with the particularity required by law, where the plaintiff amended the suit by alleging as to a certain portion of the account that “the said defendant agreed with the agent of the plaintiff on the amount shown thereon as being a true and correct statement of the indebtedness existing between them as of that date,” this was a sufficient allegation of an account stated, in the absence of proper demurrer or objection pointing out the omission to show a 'promise to pay; and as to such portion of the account the demurrer as filed was satisfied.
    2. The copy of the account attached to the summons in this case originally contained only the date, the names of the parties, and the following words and figures: “To acct. rend. $94.48.” In response to the special demurrer, the plaintiff by amendment sufficiently itemized a portion of the account, and, in reference to another portion, set forth the agreement quoted in the preceding paragraph, but as to- a remainder of $29.42 the account remained unitemized, and to that extent the amendment failed to meet the demurrer.
    3. The defendant’s petition for certiorari appears to have been good in part, and therefore should have been sanctioned.
    Accounts and Accounting, 1 O. J. p. 652, n. 56; p. 653, n. 65; p. 654, n. 82.
    Decided November 21, 1927.
    Petition for certiorari; from Glynn superior court—Judge J. H. Thomas. January 17, 1927.

      Joseph B. Hand, for plaintiff in error.

      Conyers & Gowen, contra.
   Bell, J.

In an action on an account in a justice’s court, a copy of the account attached to the summons contained only a date, the names of the parties, and the following words and figures: “To acct. rend. $94.48.” The defendant filed a timely special demurrer upon the ground that the account was not properly itemized nor set forth with the particularity required by law. Whereupon the plaintiff amended by itemizing $14.41 of the account, and by alleging that, as to $55.65 for “bal. acct. as per slips del.,” charged as of a certain date, “the said defendant agreed with the agent of the plaintiff on the amount shown thereon as being the true and correct statement of the indebtedness existing between them as of that date.” The remaining portion of the account, $29.42, remained unitemized as before. The defendant’s demurrer, being renewed, was overruled, and the case was tried and resulted in a judgment for the plaintiff. The defendant presented to the judge of the superior court a petition for certiorari, alleging the, facts as stated above. The judge refused to sanction the same, and the defendant excepted.

The plaintiff’s amendment setting forth the agreement with reference to the correctness of $55.65 of the account was an, attempt to allege an account stated, and while, it was deficient in failing to show a promise to pay, there was no demurrer or objection because of this omission. The amendment therefore was a sufficient declaration of an account stated and to that extent the demurrer was satisfied. Civil Code (Í910), § 4591; Ward v. Stewart, 103 Ga. 260 (3) (29 S. E. 872); Moore v. Hendrix, 144 Ga. 646 (87 S. E. 915); Borders v. Gay, 6 Ga. App. 734 (65 S. E. 788); Shores-Mueller Co. v. Bell, 21 Ga. App. 194 (94 S. E. 83); Russell v. Wineburg, 30 Ga. App. 319 (117 S. E. 666); Heyward v. Ramsey, 31 Ga. App. 14 (121 S. E. 847); Georgia Granite Corp. v. Union Granite Co., 31 Ga. App. 261 (120 S. E. 547). Also, the amendment sufficiently itemized $14.41 of the account, but as to the remainder, $29.42, the demurrer was not met. To this extent the cause of action was not set forth with such definiteness and certainty as to fairly apprise the defendant of the character of the plaintiff’s demand and to enable him to properly prepare a defense or to confine the plaintiff to any particular claim; and for this reason the action was subject to the special demurrer pointing out the defect. It is immaterial in such case that the amount isv small or what the actual facts are. Where there is no sufficient itemized statement of the account, “a conscientious defendant would be unwilling to file the oath denying the justice of.the plaintiff’s account until he had first seen the itemized statement,' and until he knew exactly what it was that he was denying under oath.” Pope v. Wilson, 9 Ga. App. 197 (70 S. E. 977). While such a general statement of the account might be sufficient to support a judgment as against a motion in arrest of judgment, it is not sufficient as against a timely special demurrer calling for a copy of the account and of the items which constitute it. See, Rea v. McGahee, 12 Ga. App. 326 (77 S. E. 204); Mayer v. So. Express Co., 17 Ga. App. 744 (88 S. E. 403); Jackson v. Menter Co., 20 Ga. App. 666 (93 S. E. 255); Thomas v. Forsyth Chair Co., 119 Ga. 693 (46 S. E. 869); Cone v. Glidden Stores Co., 36 Ga. App. 246 (136 S. E. 170).

The petition for certiorari, being good in part, should have been sanctioned.

Judgment reversed.

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


author: Bell, J. Stephens, J.,

text:
    18157.
    LONGSHORE v. COLLIER.
    Attachment, 6 C. J. p. 348, n. 88; p. 350, n. 17; p. 357, n. 10 Hew.
    Bankruptcy, 7 C. J. p. 195, n. 79; p. 196, n. 81; p. 197, n. 92; p. 199, n. 2.
    Certiorari, 11 C. J. p. 211, n. 61; p. 212, n. 63.
    Courts, 15 C. J. p. 987, n. 61.
    Judgments, 34 C. J. p. 258, n. 99; p. 261, n. 2; p. 357, n. 97.
   Bell, J.

1. Under section 5 of the act of August 19, 1916 (Ga. L. 1916, 199), the municipal court of Atlanta has “the same power and authority to vacate, modify, set aside or change at any time any of its judgments as is now conferred upon or exercised by the judges of the superior court of this State.”

2. “In a proper proceeding by petition with rule nisi or process, and service upon the necessary parties, the courts of this State may exercise the jurisdiction, which obtained at common law, to set aside judgments for irregularities not appearing on the face of the record.” Union Compress Co. v. Leffler, 122 Ga. 640 (50 S. E. 483); Turner v. Jordan, 67 Ga. 604; Dugan v. McGlann, 60 Ga. 353; Regopoulas v. State, 116 Ga. 597 (42 S. E. 1014); Ford v. Clark, 129 Ga. 292 (58 S. E. 818).

3. In such a case, where good cause exists for setting aside the judgment, it is not absolutely necessary that the proceeding for that purpose should be instituted at the term at which the judgment was rendered. Gillespie v. Farkas, 19 Ga. App. 158 (2) (91 S. E. 244); Civil Code (1910), § 5958. “All proceedings of every kind in any court of this State, to set aside judgments or decrees of the courts, must be made within three years from the rendering of said judgments or decrees.” Civil Code (1910), § 4358; Maddox Coffee Co. v. McHan, 22 Ga. App. 198 (95 S. E. 736); Regopoulas v. State, supra.

4. Under the provisions of the bankruptcy act of 1898, 30 Stat. 565, c. 541, § 67f, all attachments or other liens obtained through legal proceedings against a person who is insolvent at any time within four months prior to the filing of a petition in bankruptcy against him shall be deemed null and void in case he is adjudged a bankrupt, and the property affected by the attachment shall be deemed wholly discharged and released from the same.

5. Where, upon the levy of an attachment for purchase-money, the defendant replevied the property by giving bond and security as provided in the Civil Code of 1910, § 5113, and where within four months after the levy of such attachment the defendant was adjudicated a bankrupt, the lien of the attachment was void, and the principal debtor and the surety on the replevy bond were both discharged. Alvaton Mercantile Co. v. Caldwell, 156 Ga. 317 (119 S. E. 25); Rountree v. Rutherford, 65 Ga. 444; Rutherford v. Rountree, 68 Ga. 725; Sitton v. Turner, 32 Ga. App. 401 (123 S. E. 750). This ease is distinguishable from Equitable Credit Co. v. Miller, 164 Ga. 49 (137 S. E. 771). In that ease the vendor, the plaintiff in attachment, retained title to the property to secure the purchase-money, and sought a special lien against the property for which the defendant gave the replevy bond. In such circumstances “the discharge in bankruptcy will not prevent a judgment being rendered against the surety on such bond.”

6. A surety on a. replevy bond is a party to the pending attachment case only to the extent of being subject to the result or judgment in such proceeding. He “has no opportunity to defend during the trial” (Neal v. Gordon, 60 Ga. 112), but must ordinarily remain passive until after judgment and until he is called upon to answer. He may then appear and “plead to the writ, and show any irregularity in the record, or that the judgment was fraudulently and collusively obtained, or that it has been satisfied or released, or any other matter that the law judges sufficient for his discharge.” Bank of Charleston v. Moore, 6 Ga. 416, 418; Irvin v. Howard, 37 Ga. 19 (9); Craig v. Herring, 80 Ga. 709 (4) (6 S. E. 283); Planters Loan &c. Bank v. Berry, 91 Ga. 264 (18 S. E. 137); Odell v. Wootten, 38 Ga. 224; Holmes v. Langston, 110 Ga. 861 (2) (36 S. E. 251); Price v. Carlton, 121 Ga. 12 (48 S. E. 721, 68 L. R. A. 736); Philip Carey Co. v. Sheppard, 19 Ga. App. 368 (2) (91 S. E. 444); Williamson v. Williamson, 154 Ga. 788 (115 S. E. 805).

7. In this case the judgment against the principal defendant and his surety on the replevy bond was rendered at the April term, 1926, of the municipal court of Atlanta. At the succeeding May term, after a levy had been made upon the surety’s property on May 5, he filed a proceeding in the court in which the judgment was rendered to set aside the-judgment, upon the ground that the principal defendant had been adjudicated a bankrupt within four months after the levy of attachment. The court granted a rule nisi and caused service to be made upon the necessary parties. Upon the trial of this proceeding the fact of such adjudication in bankruptcy within the time stated was established without dispute and as a matter of law. Held, that the proceeding was in time, and the trial court committed error in not setting aside the judgment as prayed. The appellate division properly reversed the judgment of the trial court refusing a new trial, and it follows that the superior court rightly overruled the certiorari.

8. The above rulings are not in conflict with what was held in any of the following cases: Howell v. Glover, 65 Ga. 466; Pulliam v. Dillard, 71 Ga. 598; Adams v. Dickson, 72 Ga. 846; Gladden v. Cobb, 80 Ga. 11 (6 S. E. 163). The motions in these cases were made by the main debtors. As shown in decisions cited in paragraph 6 above, the rights of a surety on a replevy bond rest upon a different footing.

9. “Under section 4067 of the code [Civil Code (1910), § 5201], upon the hearing of a certiorari, wherever the case can be determined as a matter of law, the court must make a final disposition of it. Where it involves both law and facts, when there is no dispute as to the facts, the superior court may make a final disposition of the case.” Rome R. Co. v. Ransom, 78 Ga. 705 (3 S. E. 626); James v. Smith, 62 Ga. 345; Johnson v. Atlanta, 6 Ga. App. 779, 781 (65 S. E. 810). The court, on overruling the certiorari, properly rendered final judgment discharging the surety on the replevy bond.

Decided November 21, 1927.

Certiorari; from Fulton superior court—Judge Pomeroy. February 14, 1927.

Morris Machs, Charles W. Anderson, for plaintiff in error.

Boy 8. Brennan, II. F. Sharp, contra.

Judgment affirmed.

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

Stephens, J.,

concurring specially. I agree to all the rulings except that contained in paragraph 9. Whether the judge of the superior court has jurisdiction to render a final judgment in favor of the defendant in certiorari where the certiorari is overruled, I think that under the undisputed facts of this case the plaintiff in certiorari, who is the plaintiff in error, was not harmed by the final judgment complained of. I therefore concur in the judgment of affirmance.


text:
    18162.
    Cody & Edgar v. Automobile Financing Inc.
    Evidence, 22 O. J. p. 1119, n. 83, 84; p. 1274, n. 85; p. 1275, n. 89.
    Motor Vehicles, 42 O. J. p. 783, n. 11, 17, 18.
    Sales, 35 Oye. p. 492, n. 64.
   Bell, J.

1. Where the parties to a sale of an automobile enter into a written contract with respect thereto in which the property is described as one “Nash Touring car, 5 passenger, Model 691, serial No. 239131, motor No. 126524,” and in which it is stipulated that “the vendor does not warrant said property, and make no representations concerning same except that the title to same is in the vendor and free from encumbrance,” such stipulation amounts to a refusal by the vendor to warrant the property except as to title; and where it is not shown that the seller practiced any fraud on the purchaser touching the execution and contents of the contract, nor that there was any accident or mistake in regard to such matters, the purchaser can not contradict the terms of such written agreement by proof of parol express warranties or representations made prior to or at the time of the sale, nor plead a breach of the implied warranties of law, in defense to a proceeding by the seller to collect the purchase money. Angier v. Brewster, 69 Ga. 362; Barron G. Collier Inc. v. Bailey, 31 Ga. App. 197 (2) (120 S. E. 427); Hoffman v. Franklin Motor Co., 32 Ga. App. 229 (4) (122 S. E. 896); Rounsaville v. Leonard Mfg. Co., 127 Ga. 735 (2) (56 S. E. 1030); Worsham v. Penn, 32 Ga. App. 189 (2) (122 S. E. 817).

Decided November 21, 1927.

Affidavit of illegality of execution; from Barrow superior court —Judge Stark. April 25, 1927.

Statement of facts by Bell, J.

On April 25, 1923, Automobile Financing Incorporated delivered to Cody & Edgar, a partnership, under a written conditional sale an automobile described in the agreement as one “Nash Touring car, 5 passenger, Model 691, serial No. 239131, motor No. 126524,” -for which the vendees paid $450 in cash and were to pay a remainder of $1060 in monthly installments as set forth in the conditional-sale contract. This agreement contained the following stipulation: “The vendor does not warrant said property, and make no representations concerning same except that the title to same is in the vendor and free from encumbrance,” and was signed by the partnership as purchasers. The instrument purported to have been executed by the purchasers in the presence of one S. C. Green as a witness.

Cody & Edgar, the vendees, paid the several installments according to the terms of the agreement, with the exception of the last three installments, aggregating $475. This sum they refused to pay, and the vendor foreclosed the conditional-sale contract. TJpon the levy of the execution the defendants filed an affidavit of illegality, which, with amendments thereto, was as follows:

2. While the rule that parol evidence is inadmissible' to add to, take from, or vary a written contract has no application to new and distinct agreements subsequent to the original written contract (Elyea-Austell Co. v. Jackson Garage, 13 Ga. App. 182 (79 S. E. 38), a subsequent agreement in the nature of a novation, modifying the terms of a contract of sale excluding all warranties, must, like any other contract, be supported by a valuable consideration. Widincamp v. Patterson, 33 Ga. App. 483 (4) (127 S. E. 158); Phelps v. Belle Isle, 29 Ga. App. 571 (3) (116 S. E. 217).

3. The affidavit of illegality in this ease fails to show any consideration for the alleged subsequent warranties and agreements the breach of which was relied on as the basis for a failure of consideration or abatement of the purchase-price of the automobile. Roscorla v. Thomas, 3 Q. B. 234, Clark on Contracts (2d ed.), 138. In this respect the ease differs materially from Dortch v. Bishop, 27 Ga. App. 720 (109 S. E. 674), and Widincamp v. Patterson, supra. It is also to be distinguished on its facts from the ease of Snellgrove v. Dingelhoef, 25 Ga. App. 334 (103 S. E. 418).

4. The court did not err in striking the affidavit of illegality.

Judgment affirmed.

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

“1. Deponent says that said defendant is not indebted to plaintiff in any amount and that the conditional sales contract sought to be foreclosed as a mortgage is utterly void and without consideration, for that the consideration of said contract, as appears from the terms thereof, was one certain Nash touring-car, described therein, purchased by the defendant from the plaintiff. The notes and' contract signed by defendant was procured by the rankest kind of fraud perpetrated upon the defendant by the plaintiff, and were secured in the following manner: Defendant firm was on the market for the purchase of an automobile, and was approached by plaintiff, and defendant was much impressed with the performance of said car and finally decided to purchase a new Nash six-cylinder car. The defendant firm finally decided to purchase said new Nash car and placed an order for same, and plaintiff agreed to deliver same at three o’clock on the afternoon of the following day. Sometime in the afternoon of the day said notes and contract were executed the agent of plaintiff which defendant was dealing with, one Jones, came to the office of defendant firm and stated that he was delivering a new car as ordered to defendant, that the salesman was on the way with the car, .and that he, the said Jones, had come to close up the trade and get said notes and contract from defendant firm. Defendant had previously had dealings with plaintiff, and was acquainted with Jones, and, having no reason to believe that a monstrous fraud was about to be perpetrated upon them, they complied with the request of said Jones and executed said notes and contract before said car was delivered or defendant had had any opportunity to inspect same. Defendants waited and waited for the delivery of the car^ but the same was not delivered until after the shades of night had fallen and it was too dark to make a detailed examination, of said car.

“2. Defendants show that this was a part of an elaborate scheme on the part of the plaintiff to work off an old used car upon the defendants as being a new car, and defendants show that while they ordered and contracted for a new automobile, in truth and in fact the car delivered to them after dark by plaintiff was an old car which plaintiff had had and had 'driven and used as a demonstrating car for some time, that the paint on said car had already begun to dull, though plaintiff, as a part of the fraudulent scheme to cheat and swindle defendants, had washed said car and shined the same with some preparation to make the car appear new, but, even with all the shrewdness of plaintiff, said car appeared in the light of day to have been used.

“3. Immediately upon discovering the fraud which had been perpetrated upon them the defendants returned with said car to plaintiff and demanded that they comply with their contract and furnish them with the new car which they had purchased and paid for. Plaintiff assured defendant that said car was brand new, and that the same had been unloaded from the railroad-car only a few days previously, and told defendants to satisfy their minds as to said car, that the same was brand new and in good condition and as they represented before delivery, and that for defendants to take said ear and keep the same, and that if said car was not right they, the plaintiffs, would make such adjustments as would be just and equitable, and that they, the plaintiffs, would be responsible for the performance of the car.

“4.. Defendants show that all of the representations and warranties made- by the plaintiff in connection with said car were false and fraudulent, and were made for the purpose of deceiving and defrauding defendants, and did deceive and defraud defendants. Defendants aver that said car was old and defective and not reasonably suited for the purpose intended, to wit: of transporting defendants upon the streets and highways, that plaintiffs had carefully doctored said ear to make the same appear to be new, when in truth and in fact plaintiff had operated it to the most wearing usage in order to impress prospective purchasers. But defendants show that as a part of the fraudulent scheme of plaintiff to palm off said car on defendants, and the first time defendants saw said car was when the same was delivered under the conditions hereinbefore enumerated.

“5. Defendants show that after they had gone to plaintiff in regard to said car, and plaintiff had allayed defendants’ suspicions by guaranteeing the performance and. newness of said car, that the following latent defects appeared in said car, all appearing within three weeks of the time plaintiff had told defendants that they would be responsible for the performance of said car, the paint job on said car was defective, in that the paint immediately became dull and gave an old and worn appearance to said car, the speedometer on said car was defective in that as a part of the fraudulent scheme of plaintiff to defraud defendants the seal on the same had been broken and the same run back to hide from defendants the fact that said car had been operated, the battery in said car was old and worn and went dead, and refused and failed to start the car or to give any light; that the transmission of said car was worn out and utterly useless, and had to be constantly repaired; the clutch of said car was defective and slipped constantly, and defendants show that said clutch had to be tightened almost every week, and defendants show that all of said car, on account .of the strain imposed upon it while operated by plaintiff as a demonstrator was not reasonably suited for the purposes intended and that said notes and contract were obtained through false and fraudulent representations that a new car was to be delivered to defendants.

“6. Defendants further show that the strain on said car, had forced the rear axles on same out of line, and it was' necessary in the repair of same to weld on an additional piece to the end of said axle.

“7. Defendants further show that as a part of the fraudulent scheme of plaintiff to cheat and defraud defendants that the name of S. C. Green appears as a witness to said conditional sales contract, when in truth and in fact no such person was present when the same was executed, nor did he see this defendant sigh said contract, and any such person is not even known by defendants.

“8. Defendants show that the consideration of said note has wholly and totally failed, that defendants have paid to plaintiffs more than $200 more than said car was worth when originally delivered, that by reason of the false representations and warranties made by the plaintiff which induced defendants to keep said car after the defects in same had been discovered, the defendants have been damaged in the sum of $500, in that said car had been in the shop for repairs when the same was needed by defendants in their business, which was that of real-estate dealers, for as much as 10 days, that defendants have expended large sums on said car by way of repairs, for which said sums the defendants pray judgment.

“(a) Defendants say that immediately upon discovering the fraud which had been perpetrated upon them by the action of the plaintiff in delivering to them a second-hand ear as being new, that they returned said car to plaintiffs and demanded a rescission of the contract, and offered to restore to plaintiff the said car and rescind the contract of purchase and sale. Plaintiffs refused to accept said car and to rescind said contract, but insisted that the car was all that had been claimed by them and was a new car.

“(6) Defendants further say that the representations of plaintiffs as to said car were false, and that said car had in fact been used for some time as a demonstrator, and that the representations of said plaintiff as to said car being new were made for the purpose of deceiving and defrauding these defendants.

“(c) Defendants show that upon offering to rescind the contract and restore the ear to plaintiffs that plaintiffs refused to accept said car, and told these defendants that if said car did not operate as new that they would adjust the matter satisfactorily with defendants, and would give them either an abatement of the purchase price or make good any defects in said car. And defendants show that the payments made by them upon said car were made in consideration of the promises and agreements of plaintiffs to adjust equitably the fraud which had been perpetrated upon these defendants. That defendants, knowing that said car was of some value, even if old and previously used as a demonstrator, paid to plaintiffs upon said ear the payments credited upon the note, but each payment was made with the express understanding and agreement with plaintiff that plaintiff would equitably adjust the matter in controversy with defendants. Defendants were anxious to avoid any litigation with the plaintiffs, and, relying on these promises of plaintiffs to adjust the matter to their satisfaction, and' to see that said car gave the service of a new one, paid the several notes which became due prior to the note foreclosed in this case. However, defendants show that said car did not give satisfaction, that it was defective in the details set out in the original illegality, and that upon the failure of plaintiffs to comply with their promises to make the said ear satisfactory these defendants ceased their payments on said notes, having already paid more than said car was worth.

"(d) Defendants show that each and every one of the payments were made upon the distinct understanding and agreement with plaintiffs that they would see that said car performed as a new car and that they would be responsible for any defects in the car and would adjust all defects, and that all of said representations and promises of plaintiffs were made after the execution of the notes sued upon.”

The court sustained an oral motion to strike the affidavit of illegality for insufficiency in law, and the defendants excepted.

Richard B. Russell Jr., for plaintiffs in error.

Key, McClelland & McClelland, R. II. Kimball, contra.


text:
    18182.
    Smith et al. v. Hall.
    Appeal and Error, 4 C. J. p. 1033, n. 37.
    New Trial, 29 Cyc. p. 789, n. 4.
    Trial, 38 Cyc. p. 1595, n. 3, 4.
    Vendor and Purchaser, 39 Cyc. p. 1313, n. 6; p. 1314, n. 7; p. 1585, n. 70; p. 1586, n, 73, 74 j p. 1596, n. 41.
   Bell, J.

1. Where lands are sold by the tract and are described in the agreement as containing so many acres more or less, the vendee can not have an apportionment of the purchase price on account of an alleged deficiency in the acreage without alleging and proving actual fraud on the part of the vendor. Emlen v. Roper, 133 Ga. 726 (66 S. E. 934); Montgomery v. Robertson, 134 Ga. 66 (67 S. E. 431); Collier v. Clay, 137 Ga. 473 (73 S. E. 655); Kirkland v. Brewton, 32 Ga. App. 128 (122 S. E. 814). It is not enough merely to show a deficiency so gross as to justify the suspicion of wilful deception or mistake amounting to fraud. While that is an issue which necessarily arises in all cases of this sort, it is only preliminary to the principal question of fraud in fact, and must be decided in favor of the vendee before the latter question is open for consideration. Estes v. Odom, 91 Ga. 600 (18 S. E. 355).

2. The court in this case charged the jury in the language of the decision of the Supreme Court in Wylly v. Gazan, 69 Ga. 506 (5, a) as follows: “If a purchaser has equal opportunities with his vendor for discovering the contents of a lot sold, he is bound to avail himself of those opportunities. If he fails to do so, and on account of his own gross negligence he is injured, relief will not be granted.” The defendant has excepted to this charge upon the ground that it contained an intimation that the failure by the vendee to exercise such opportunities would amount to gross negligence. Language which may be proper in a headnote or in an opinion by a reviewing court may be inappropriate as an instruction to a jury, and the mere fact that the charge complained of was taken verbatim from a decision of the Supreme Court did not necessarily make it proper as a charge to a jury. Bonita Theater v. Bridges, 31 Ga. App. 798 (2) (122 S. E. 255). The excerpt under consideration may, perhaps, be subject to the criticism made upon it; but even if so, a new trial would not necessarily result. The vendee can not have an apportionment if he has equal opportunities with the vendor for discovering the contents of the tract sold and fails to avail himself thereof. Since his mere failure to use an opportunity equal to that of the vendor to discover the number of acres would bar a recovery, and since the issue of whether the vendee failed in this regard was fairly submitted, it is immaterial that the court may have intimated that such failure would amount to gross negligence. Howard v. Ga. Ry. & Power Co., 35 Ga. App. 273 (2) (133 S. E. 57).

Decided November 21, 1927.

Attachment; from Walker superior court—Judge Maddox. March. 7, 1927.

Norman Shattuck, for plaintiffs in error. Rosser & Shaw, contra.

3. There is no merit in any of the exceptions to the charge of the court. The evidence did not demand the inference of actual fraud on the part of the vendor as alleged in the defendant’s plea. The verdict in favor of the plaintiff for the amount sued for was therefore authorized. The court did not err in refusing a new trial.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., coneur.


author: Luke, J.

text:
    18406.
    O’NEAL v. CITY OF ATLANTA.
    Where certiorari to review a conviction of a violation of a municipal ordinance is issued upon a petition not accompanied by the statutory bond for the appearance of the defendant to abide the final order, judgment, or sentence, the writ is void and the petition can not be amended by attaching the proper bond. Certiorari, 11 C. J, p. 159, n. 95; p. 161, n. 39.
    Decided November 15, 1927.
    Rehearing denied December 13, 1927.
    Certiorari; from Fulton superior court—Judge Humphries. June 12, 27, 1927.
    A motion “to dismiss the certiorari and petition on the ground that the petitioner had not given the bond required by law in such eases” was sustained by the judge of the superior court, and the petitioner filed- a motion to set aside the judgment of dismissal and to reinstate the case, in which motion it was stated that the petitioner, prior to the sanction of his petition for certiorari and on the date of his conviction' filed with the clerk of the recorder’s court of the City of Atlanta, in which the case was tried, a bond payable to the City of Atlanta in the amount of $200, conditioned that he should “personally appear and abide the final order, judgment, or sentence upon him in said case;” that the bond was approved by the said clerk, and that he filed also with the clerk a notice of his intention to apply for the writ of certiorari, and the justification affidavit of his security on the said bond. A copy of the bond referred to was attached to this motion. The petition for certiorari alleged that the petitioner had “complied with the law in such cases.” Attached to it was a bond for “the eventual condemnation money and all future costs in said case;” and this was followed by the recorder’s certificate that the petitioner had “given bond and security as required by law.” The writ of certiorari recited that the petitioner had “complied with the requirements of law in cases of application for certiorari.” The recorder’s answer admitted the truth of the petition, with certain exceptions not material here. Counsel for the plaintiff in error cited: 125 Ga. 252; 119 Ga. 628; 118 Ga. 52; 20 Ga. 77; 2 Ga. App. 322; 6 Ga. App. 288.

      W. II. Terrell, for plaintiff in error.

      J. L. Mayson, C. S. Winn, contra.
   Luke, J.

1. After conviction of an offense in the recorder’s court of Atlanta, the defendant brought a petition to the superior court for a writ of certiorari. He attached to the petition a bond “for the eventual condemnation money and all future costs in said case.” This does not comply with the statute which requires a bond “conditioned for the personal appearance' of the defendant to abide the final order, judgment, or sentence” óf the court; and the judge of the superior court did not err in dismissing the certiorari. Roberts v. Colquitt, 17 Ga. App. 557 (87 S. E. 816); Hubert v. Thomasville, 18 Ga. App. 756 (90 S. E. 720); Gillespie v. Macon, 19 Ga. App. 1 (90 S. E. 970); Sassene v. Atlanta, 36 Ga. App. 208 (136 S. E. 109).

2. The court properly refused to entertain the motion of plaintiff in error to reinstate the certiorari (which motion had attached to it an appearance bond), because the. motion amounted to an effort to amend the certiorari proceedings or bond, and “the certiorari bond can not be amended, because a good and sufficient bond is made a condition precedent to the issuing of the writ, and if the bond is defective the writ is void, and the court without jurisdiction of the case.” Jones v. Gill, 121 Ga. 93, 96 (48 S. E. 688). The appearance bond was not a part of the certiorari proceeding, as shown by the record, at the time the judge of the superior court dismissed the certiorari.

Judgment affirmed.

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


author: Bloodworth, J.

text:
    18305.
    Scott v. Bradley, for use, etc.
    Decided November 16, 1927.
    Rehearing denied December 13, 1927.
    Complaint; from city court of Decatur—Judge Guess. May 6, 1927.

      Oliver G. Hancock, for plaintiff in error.

      Boykin & Boykin, John A. Dunaway, contra.
   Bloodworth, J.

1. There is nothing in any of the grounds of the motion for a new trial that requires another hearing of the ease.

2. The court did not err in directing a verdict for the plaintiff.

Judgment affirmed.

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


author: Broyles, C. J.

text:
    18306.
    STROUD v. WRAY BROTHERS.
    On the trial of an action in trover where the plaintiff elects to take a money verdict for the highest proved value of the property between the time of the conversion and the trial, he is not entitled to recover interest.
    Trover and Conversion, 38 Cye. p. 2090, n. 52; p. 2096, n. 65.
    Decided November 16, 1927.
    Rehearing denied December 13, 1927.
    Trover; from Greene superior court—Judge Park. May 19, 1927.

      M. C. Few, for plaintiff. Noel P. Park, for defendants.
   Broyles, C. J.

This was an action in trover, and upon the trial the plaintiff elected to take a money verdict for the highest proved value of the property between the time of the conversion and the time of the trial. The jury returned a verdict for “$106.20 principal, and $36.20 interest.” It is well settled by numerous decisions of the Supreme Court and of this court that in such a case the plaintiff is not entitled to recover interest. In the instant case it appearing that the plaintiff, after the return of the verdict, insisted that he was entitled to the full amount of the verdict, the court properly granted the defendant a new trial on the ground that the plaintiff was not entitled to recover any interest. The grant of a new trial was based also on two other grounds as set forth in the order of the trial court. . However, under all the facts of the case and the law applicable thereto, the court erred in granting a new trial on the two additional grounds. Therefore, under the broad authority vested in this court, and for the purpose of terminating this litigation which began in 1922, the judgment granting a new trial is affirmed with direction that when the remittitur from this court is made the judgment of the trial coprt the plaintiff be allowed to write off from the verdict the amount found for interest, and that final judgment be entered in favor of the plaintiff for $106.20, and that the judgment granting a new trial be vacated. The costs of bringing the case to this court are taxed against the plaintiff in error.

Judgment affirmed, with' direction.

Luke and Bloodworlh, JJ., concur.


text:
    18328.
    GARMANY, sheriff, for use, etc., v. SHAW.
    Where the sureties on a forthcoming bond induce the sheriff to substitute another forthcoming bond, with new sureties, as in satisfaction of the first bond, and the plaintiff in fi. fa. brings suit on the first bond and the suit results in a verdict and judgment against him and in favor of the sureties, and he then brings suit on the sheriff’s official bond and loses that suit (for the above-stated reason), he nevertheless can after-wards proceed against the sureties on the second forthcoming bond. The plaintiff in the present action was not estopped from bringing the action; the evidence demanded a verdict for him, and the court erred in directing a verdict for the defendant.
    Election of Remedies, 20 O. J. p., 6, n. 54; p. 7, n. 55, 56.
    Decided November 16, 1927.
    Rehearing denied December 13, 1927.
    Complaint on forthcoming bond; from Walker superior court— Judge Maddox. May 4, 1927.
    Application for certiorari was made to the Supreme Court.
    In the motion for a rehearing it was alleged that the court overlooked the decision in Stokes V. Wright, 20 Ga. App. 325, and the fact that at the time of bringing the suit against the sheriff and his official bondsmen the plaintiff “knew of the existence of the forthcoming bond signed by defendant in error.”

      D. F. Pope, M. B. Eubanks, for plaintiff.

      Rosser & Shaw, for defendant.'
   Broyles, C. J.

“Where property levied on has been released on a forthcoming bond and is not produced on the day of sale, the plaintiff in fi. fa. has two remedies. He can proceed directly against the sheriff by an action on the case, or by rule; or he can bring suit upon the forthcoming bond, either in his own name or in the name of the sheriff for his use, provided that he has ratified the action of the sheriff in accepting the bond where it was taken without the consent of the plaintiff in fi. fa. These two remedies are inconsistent, and where the plaintiff in fi. fa. elects to sue on the forthcoming bond, and the suit results in a verdict and judgment against him, he can not subsequently bring an action against the sheriff, either on that officer’s official bond or by rule.” Hunter v. Garmany, 36 Ga. App. 275 (136 S. E. 465), and cit. However, in such a case, and where the sureties, on the forthcoming bond have induced the sheriff to substitute another forthcoming bond, with new sureties, as in satisfaction of the first bond, and the plaintiff in fi. fa. brings suit upon the first forthcoming bond and a verdict and judgment are rendered against him and in favor'of the sureties, and he then brings suit on the sheriff’s official bond and loses that suit (for the above-stated reason), he nevertheless can subsequently .proceed against the sureties on the second forthcoming bond. His first action was an election to bring suit on the first forthcoming bond, and the present suit, brought against different sureties, is not inconsistent with the first action. The further fact that after verdict and judgment against him in the first suit, and prior to the present suit, he, under a supposed remedial right (which he did not have), sued the sheriff on his official bond, does not affect the above-stated ruling, and did not estop him from bringing the present suit. A plaintiff may pursue any number of consistent concurrent remedies against different persons until he obtains satisfaction from some of them. Civil Code (1910), § 5522; Prince v. Wood, 23 Ga. App. 56 (97 S. E. 457), and cit. Hnder all the facts of the instant case, it would be a miscarriage of justice if the plaintiff failed to recover.

In view of the preceding rulings, the court erred in overruling the plaintiff’s motion to strike paragraph 14 of the answer, which alleged an estoppel, and in admitting the documentary evidence set out in the fifth assignment of error in the bill of exceptions,— the record of the plaintiff’s suit on the first forthcoming bond, and the verdict therein. The legal evidence demanded a verdict in favor of the plaintiff, and the court erred in directing a verdict for the defendant.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    18302.
    HADDEN v. WILLIAMS.
    The note sued upon having excluded by its terms any express warranty except as to the title to the mule for which it was given, the plea which set up an express warranty was not good. The allegations as to fraud inducing the defendant to sign the note, and as to his inability to read, were insufficient. The entire plea should have been stricken, and the error in failing to strike it rendered the further proceedings nugatory.
    Contracts, 13 C. J. p. 372, n. 38, 39. •
    Pleading, 31 Cyc. p. 619, n. 64.
    Sales, 35 Cyc. p. 413, n. 14; p. 555, n. 76; p. 556, n. 84; p. 557, n. 93.
    Decided December 13, 1927.
    Complaint; from Glascock superior court—Judge Perryman.' June 3, 1927.

      M. Q. Barwick, for plaintiff.

      F. H. Miller, B. F. Walker, for defendant.
   Bloodworth, J.

The plea is insufficient in law and should have been stricken on the oral-motion of the plaintiff. The note sued upon specifically stated that the only warranty given by the seller of the mules was as to their title. This excluded every other express warranty, and the plea set up express warranties only. Purser v. Rountree, 142 Ga. 836 (83 S. E. 958); Hoffman v. Franklin Motor Co., 32 Ga. App. 229 (3, 4) (122 S. E. 896). The defense set up in the plea as to fraud on the part of the plaintiff in inducing the defendant to sign the note was insufficient to excuse him, although he could neither read nor write. The plea does not state that the defendant could not have procured some third person to read the note for him. It sets np no emergency that would excuse him from getting some one else to read it to him. The plea sets up no fiduciary or confidential relation between the parties, nor does it set up that his failure to have some third person read it to him was caused by some misleading artifice or device perpetrated by the plaintiff. On the contrary the plea shows that the defendant himself requested the plaintiff to read the note to him, and that he accepted the reading as correct when there existed no confidential of fiduciary relation between him and the plaintiff. These facts show that he was grossly negligent in the premises. “If one can not read a contract which he is about to execute, it is as much his duty to. procure some reliable person to read and explain it to him before he signs it as it would be to read it himself if he were able to do so, and his failure to obtain a reading and an explanation of it is such gross negligence as will estop him from repudiating it on the ground that he was ignorant of its contents.” Chicago &c. Ry. Co. v. Belliwith, 83 Fed. 437 (28 C. C. A. 358), cited, and approved by this court in Bateman v. Small, 24 Ga. App. 244, 247 (100 S. E. 573). See Walton Guano Co v. Copelan, 112 Ga. 319 (37 S. E. 411, 52 L. R. A. 268) Widincamp v. Patterson, 33 Ga. App. 483 (1, 2); Tinsley v. Gullelt Gin Co., 21 Ga. App. 512 (2) (92 S. E. 892); Barnes v. Slaton Drug Co., 21 Ga. App. 580, 582 (94 S. E. 896). The plea attempting to set up a rescission of the trade was totally inadequate. See Widincamp v. Patterson, 33 Ga. App. 483 (3, 4) (127 S. E. 158). The entire plea should have been stricken, and the error in not striking it rendered the further proceedings nugatory.

Judgment reversed.

Broyles, G. J., and Dulce, J., concur.


text:
    18329.
    18330.
    SALA v. BLUE DIAMOND MORTAR CO. et al. GIANOLA et al. v. SALA et al.

    Each count of the petition, by which it was sought to recover damages for personal injuries from the collision of an automobile with crushed rock alleged to have been placed in the highway by Blue Diamond Mortar Company for Gianola Company, to be used in work of the latter company for a certain individual, set out a cause of action against Gianola Company, and neither count set Out a cause of action against Blue Diamond Mortar Company. None of the special demurrers was meritorious. It follows that the judgment overruling the demurrers of Gianola Company was correct, and that the judgment sustaining the general demurrer of Blue Diamond Mortar Company was also correct.

      Motor Vehicles, 42 O. J. p. 1190, n. 2; p. 1262, n. 40.
    Nuisances, 29 Cyc. p. 1177, n. 53.
    Pleading, 31 Oye. p. 83, n. 16.

      Decided December 13, 1927.
    Action for damages; from Fulton superior court—Judge Humphries. June 14, 1927.

      Albert E. Mayer, Hewlett & Dennis, for plaintiff.

      Dodd ■& Dodd, for defendants.
   Luke, J.

Mrs. Eosa L. Sala brought her action in two counts against Blue Diamond Mortar Company, a corporation, and Peter and Julius Gianola, trading as copartners under the name and style of “Gianola Company.55 After the petition had been twice amended to meet the,' defendants5 general and special demurrers, the court overruled the demurrers of Gianola Company, and sustained the demurrer of Blue Diamond Mortar Company, and dismissed the petition as to it. Gianola Company excepted to the judgment overruling its demurrers, and Mrs. Sala excepted to the judgment sustaining the demurrer of Blue Diamond Mortar Company.

The first count of the petition is substantially as follows:

1. Defendants are named.

2. Defendants jointly and severally injured and damaged petitioner in the sum of $10,000.

3. “On February 29, 1924, and for a few days prior thereto, defendants Gianola were doing certain concrete work for M. C. Kiser at or near his home on Peachtree Eoad, just beyond the incorporated'limits of the City of Atlanta.55 (By amendment the following was added to this paragraph:) “Peachtree Eoad at said point is a thickly populated community, and is constantly used by the public in driving automobiles .on the right-hand side going north.55

4. “That on or about said date, said defendants Gianola had ordered from defendant Blue Diamond Mortar Company a certain quantity of crushed rock, said rock to be delivered by defendant Blue Diamond Mortar Company at the work being done for M. C. Kiser.55 (The following was added by amendment:) “And the said Gianola' Company requested the said Blue Diamond Mortar Company at the time of ordering said crushed rock, that said rock be placed by the Blue Diamond Mortar Company for defendant Gianola Company in Peachtree Road in front of the said place where the work was to be done.”

5. “That Peachtree Road is a public thoroughfare running from the City of Atlanta north to Buckhead; that M. C. Kiser resides approximately 400 yards north and outside the limits of said City of Atlanta.”

6. - “That on said date, and about dusk or shortly prior thereto, defendant Blue Diamond Mortar Company hauled and delivered the said load of crushed rock to defendants Gianola by placing the same in Peachtree Road on the right-hand side going north and just in front of the home of the said M. C. Kiser.” (The following was added by amendment:) “That at the time of the delivery of said load of crushed rock, defendant Blue Diamond Mortar Company was represented by its driver and other employees attached to said truck, whose names are unknown, and who unloaded and dumped said crushed rock in said highway on the right-hand side thereof going north; and said Gianola Company was represented by its employee or foreman in charge of said work, whose name is unknown to plaintiff, but who was present and directed where said crushed rock should be dumped or placed, and who received the same; and said crushed rock was thus delivered and received by defendants and left in said highway.” (This paragraph was further amended by adding the following:) “That on account of the fact that it was about dusk, and the further fact that the said public highway was being constantly used by vehicles, it was the duty of the Blue Diamond Mortar Company, in the exercise of ordinary care, when they placed said crushed rock in said highway, to have placed thereon red lights or other signals to have warned persons using the highway that the same was there; and it was also the duty of the Gianola Company, the other defendants, in the exercise of ordinary care, for the same reasons, that is, because it was about dusk, and because the highway was being constantly used by vehicles as aforesaid, to have placed red lights or other signals upon said crushed rock, to warn persons using the highway that the same was there.”

7. “That neither the defendant Blue Diamond Mortar Company nor the defendants Gianola removed said rock from said public highway, but allowed the same to remain placed therein; and neither of said defendants placed upon or about said crushed rock any lights or signals to warn persons using the highway that the same was there.”

8. “That on said date and about the hour of nine o’clock p. m., petitioner was riding in her automobile, which was being driven by her husband, out said Peachtree Road in a northerly direction, towards and by the home of the said Kiser.” (By amendment the following was added to this paragraph:) “That said automobile had attached to the front two bright headlights as required by law, which were lighted, but on account of the fact that said crushed rock was of the same color as the highway it could not be' distinguished from the highway; and although the plaintiff and her said husband were looking directly ahead, neither saw, nor could have seen, that said rock was placed in said highway because of the reason aforesaid.”

9. “That said automobile reached said point, and without any warning whatever the same struck and collided with the said crushed rock, breaking the glass windshield, which flew back into the face of petitioner,- and severely cut, bruised and injured her, as will be hereinafter set forth.”

10. “That said defendant Blue Diamond Mortar Company and defendants Gianola, by the placing of said crushed rock in said highway and allowing the same to remain' therein, created and maintained a nuisance.”

11. “That plaintiff’s husband did not see said pile of crushed rock, had no warning' whatsoever of same, and he and she were free from all fault and blame in the premises.”.

13. Plaintiff was injured in designated particulars.

13. Plaintiff was 43 years of age and strong and healthy, and suffered pain and permanent injuries.

Count 3 is identical with count 1 except in the following particulars: Paragraph 10 of count 1, alleging the creation and maintenance of a nuisance, is omitted from count 3. Paragraph 11 of count 1 appears in count 3 as paragraph 10, and there is no paragraph in the second count numbered 11. - Two new paragraphs numbered 14 and'15 were added to the second count. They are as follows: 14. “That defendants were negligent in the following particulars: («.) In placing said -rock' in the public highway. (6) In failing to place thereabouts lights or barriers to prevent persons from colliding therewith.” 15. “That petitioner was free from all fault and blame in the premises, and was in the exercise of ordinary care, for that her said husband at said time was driving at a reasonable rate of speed, and had no knowledge of the fact that the rock was in the highway.”

1. We shall first consider the exceptions of Gianola Company. It is urged that the court erred in overruling the general demurrer because: (a) Plaintiff’s injuries, if any, were due to the

negligence of her husband, the driver of the ear. (6) The alleged injuries could have been avoided by the exercise of ordinary care, (c) The facts set out in count 1 did not constitute either the creation or the maintenance of a nuisance.

It is contended that since two bright head-lights were attached to the car and both plaintiff and. her husband were looking directly ahead, it clearly appears that the collision was caused by the husband’s negligence, and that it could have been avoided by the exercise of ordinary care; and, further, that the allegation that said rock could not be distinguished from the highway controverts all human experience, and, in the light of the other allegations of the petition, could not be true. In this connection it is contended that Brinson v. Davis, 32 Ga. App. 37 (122 S. E. 643), is controlling, and settles the issue in favor of Gianola Company. With this conclusion we do not agree. In that case the driver of the automobile, knowing that he was blinded by a bright light, drove the car onto a railroad-crossing, a known place of danger, and into a standing train of freight-cars. This court is not prepared to say upon demurrer that the allegation in the petition under consideration that neither plaintiff nor her husband could or did see the crushed rock in the highway, because it was the same color as the highway, was untrue because the 'automobile was lighted with headlights and both parties were looking directly ahead. This was a jury question, and the court did not err in so considering it.

Nor do we see any merit in the contention that the facts set out in count 1 do not show the creation or maintenance of a nuisance. In Mayor &c. of Columbus v. Jaques, 30 Ga. 506, the second headnote reads: “Any obstruction to a public street in a city is a public nuisance.” In the body of this decision (p. 512), the following occurs: “There is no doubt but that all injuries whatsoever to a highway, as by digging a ditch or making a hedge across it, or laying logs of timber in it, or by doing any other act which will render it less commodious to the King’s subjects, are public nuisances at common law.” “The primary purpose of a street is for passage and travel, and any unauthorized and illegal obstruction of its free use pomes within the definition of a nuisance; and such obstruction as would leave the street or way in an unsafe condition or impair its use in an unreasonable manner or for an unreasonable time would render the city liable for any damages resulting therefrom.” City Council of Augusta v. Jackson, 20 Ga. App. 710 (93 S. E. 304); Simon v. Atlanta, 67 Ga. 618 (44 Am. R. 739). See also Maddox v. Cunningham, 68 Ga. 431 (3), (4), (5) (45 Am. R. 500). The allegations of the petition that Gianola Company, through its employee or foreman, directed the placing of said rock, and that it was received at about dusk, and was permitted to remain in the highway, are sufficient to withstand the demurrer.

The petition as amended was not subject to any of the special demurrers. One demurrer is that neither the color of said crushed rock nor the color of the highway is set out. In view of the amendment to paragraph 6 of each count, we are clear that the overruling of this demurrer was not error. The other special demurrers were met by amendments, and it would answer no good purpose to discuss them.

We now come to consider the exceptions of Mrs. Sala, complaining of the judgment sustaining the demurrer of Blue Diamond Mortar Company and dismissing the petition as to it. The petition alleges that Gianola Company was represented by its employee or foreman in charge of said work, . . who was present and directed where said crushed rock should be dumped or placed. Construing the petition as a whole, in the light of the foregoing allegation, we do not think that Blue Diamond Mortar Company did more than fill an order to deliver crushed rock, and are of the opinion that it was not responsible either for placing the rock in the highway or for allowing it to remain sthere. It follows that the court properly sustained the demurrer of the Blue Diamond Mortar Company.

Judgments affirmed.

Broyles, C. J., and Bloodworth, J., con-


author: Bloodwobtu, J.

text:
    18418.
    Davis v. The State.
    Appeal and Error, 4 C. J. p. 864, n. 33; p. 865, n. 39.
    Decided December 13, 1927.
    Kidnapping; from Cook superior court—Judge Knight. July 30, 1927.

      "W. D. Buie, H. -W. Nelson, for plaintiff in error.

      E. 0. Morgan, solicitor-general, G. E. Parrish, contra.
   Bloodwobtu, J.

None of the grounds of the amendment to the motion for a new trial show any reason for a reversal of the judgment; the jurors, whose province it is to pass upon the facts, have decided the issues raised by them adversely to the contention of the defendant, and, as no error of law was committed on the trial and the verdict is approved by the presiding judge, this court is powerless to interfere.

Judgment affirmed.

Broyles, G. J., and Lulce, J., concur.


author: Brotles, C. J.

text:
    18463.
    Goff v. The State.
    Criminal Law, 16 C. J. p. 698, n. 88; p. 700, n. 92; p. 701, n. 20, 22, 25; p. 702, n. 27; p. 705, n. 41; p. 706, n. 44; p. 1180, n. 70.
    Decided December 13, 1927.
    Burglary; from Berrien superior court—Judge Knight. August 13, 1927. '

      W. D. Buie, for plaintiff in error.

      PL. G. Morgan, solicitor-general, contra.
   Brotles, C. J.

Before one can be legally convicted on the testimony of an accomplice, such testimony must be corroborated by other evidence, either direct or circumstantial, which, independently of the testimony of the accomplice, directly connects the accused with the offense charged. Scott v. State, 32 Ga. App. 52 (122 S. E. 647), and cit. In the instant ease the testimony of the accomplice was not so corroborated, and the refusal to grant a new trial was error.

Judgment reversed.

Lulce and Bloodworth, JJ., concur.


author: Blood worth, J.

text:
    18469.
    GUARANTY LIFE INSURANCE CO. v. PRIMO.
    1. A new trial is not required because of tbe admission of the testimony as to the age of the insured of which complaint is made in the first ground of the amendment to the motion for a new trial.
    2. Neither excerpt from the charge, of which complaint is made, shows an error which requires that the ease be tried again.
    3. All contested issues of fact having been passed upon by the jury, and there being evidence to support the verdict, which has the approval of the judge who tried the case, this court can not interfere.
    Appeal and Error, 3 O. J. p. 818, n. 23; p. 819, n. 26; 4 O. J. p. 858, n. 3; p. 859, n. 7.
    Evidence, 22 C. J. p. 528, n. 25.
    Life Insurance, 37 0. J. p. 651, n. 67.
    Trial, 38 Oye. p. 1376, n. 99; p. 1778, n. 73.
    Decided December 13, 1927.
    Action on life policy; from city court of Albany—Judge Clayton Jones. August 29, 1927.
    G. E. Primo sued tbe Guaranty Life Insurance Company, alleging that it was indebted to him as beneficiary on a policy issued to Jim Jones; that Jones died on or about July 27, 1926; that the plaintiff promptly furnished to the insurance company legal proofs of his death, but that after repeated demands for payment the company, without cause or legal reason, refused to pay the claim; and that “the refusal of the said company is vexatious, unreasonable, unnecessary, without stating in writing sufficient grounds for refusal, and defendant herein further persists in its refusal and failure to return the insurance policy and the proofs submitted by your petitioner, and this refusal to pay has continued for more than sixty days.” The plaintiff prayed for damages and attorney’s fees. The defendant denied liability. It expressly denied bad faith and alleged that Primo had no insurable interest in the life of Jones; that Primo was acting for himself and at his own expense; and that Primo and Jones were both acting in bad faith; that Primo at his own expense secured the insurance on Jim Jones, and this “was simply a scheme and a device by way' of cover for a wager policy, and said contract so entered into was and is a wagering and speculative one and contrary to public policy and the laws of the State of Georgia, and was and is void.” The defendant further insisted that the plaintiff was “not entitled to recover the sum sued for, in that said insured represented in his written application that he was 40 years of age, when, in truth and in fact said insured, Jim Jones, at the time of the making of said application, to wit, on June 5, 1925, was at least 60 years of age.” The trial resulted in a verdict for the plaintiff for the amount of the policy. The insurance company’s motion for a new trial, was overruled, and it excepted.

      S. B. Lippitt, for plaintiff in error. W. H. Burt, contra.
   Blood worth, J.

(After stating the foregoing facts.)

In the brief of counsel for plaintiff in error he expressly abandoned his assignments of error based upon his exceptions pendente lite.

In the first special ground of the motion for a new trial error is assigned on the admission of the following evidence:

(a) Testimony of the plaintiff: “I am not related to Jim Jones. He is not a member of my church. I do not know his age, but he said he was forty years old.” (&) Also: “Jim Jones told me' that he wanted me to pay the premiums when he could not keep them up. I had not seen Jim Jones for about two or three weeks until I found that he had died, when I immediately went and secured his body from Captain Pinson and delivered it to the Elliott Undertaking Company for burial, as Jim Jones had told me that he wanted me to look after him when he died and see that he was given proper attention, and- this was said at the time he gave me the insurance policy.” (c) Testimony of James Grant: “He [Jim Jones, the deceased] said also that he was about 40 years of age. When I asked him the question as to his family, he said he had none.”

The objections urged to the foregoing evidence were that it was “hearsay, incompetent, irrelevant, and immaterial.” A portion of the evidence in each case was not subject to the objection that it was hearsay. Under the ruling in Norris v. Lynch, 26 Ga. App. 389 (106 S. E. 801), which is supported by a number of citations, unless the illegal portion of the evidence objected to is specified, the whole will be admitted.

(d) Sandy Turner swore: “Jim Jones [the deceased insured] looked prematurely old and was thin.” This evidence was objected to as “a conclusion and opinion of the witness.” This evidence was not a conclusion, but a statement of facts, and was properly allowed to go to the jury. Dixie Manufacturing Co. v. Ricks, 28 Ga. App. 160 (110 S. E. 454). Sandy Turner swore also that when Jim Jones had a beard and his hair was long he looked about 45 years old, and that after he was shaved he looked about 40 years old. The objection to a portion of the foregoing evidence (in a, b, c), that it was “incompetent, irrelevant and immaterial,” is too general to present anything for consideration by this court. Gordon v. Gilmore, 141 Ga. 347 (2a) (80 S. E. 1007); Richardson v. State, 141 Ga. 782 (2) (82 S. E. 134); Hayes v. State, 36 Ga. App. 668, (1e) (137 S. E. 860).

The court charged the jury as follows: “The public policy which prevents one person from insuring the life of another, in whose life he has no insurable interest, is based upon the presumption that temptation would be held out to the one taking out the policy to hasten by improper means the time when he should receive the amount of insurance named in the policy, and that such temptation would be as strong in a case where the assured took out a policy upon his own life for the benefit of one having no interest therein and was to keep up the premiums or assessments as it would be where the premiums or assessments were to be paid by the beneficiary. The testimony, therefore, in this case, with reference to the beneficiary having paid certain premihms after the original policy was taken out, does not alter the rule as to the right of the.insured to make any one a beneficiary, provided it not be done by way of a cover for a wager policy.” This excerpt therefrom, when read in connection with the remainder of the charge and in the light of the evidence, is not erroneous for any reason alleged.

It is urged that the judge erred in reading from the petition as follows: “that the refusal of said company is vexatious, unreasonable, unnecessary, without stating in writing sufficient grounds for refusal, and defendant herein further persists in its refusal and failure to return the insurance policy and the proof submitted by your petitioner, and this refusal to pay has continued for more than sixty days.” This portion of the petition-had reference to the right of the plaintiff to recover attorney’s fees on certain conditions, and as the judge did not charge them that they could find damages or attorney’s fees, and the jury found neither, the reading of this part of the petition could not have been harmful to the defendant.

A new trial should not be granted because of the conflicting testimony as to the age of Jim Jones, or that the policy resulted from a conspiracy between Jones and Primo, or was a wagering contract. The insurance company introduced the application for the policy, and in that the age of Jones was stated, as 40. James Grant, who took the application for the insurance company, was allowed to swear without objection that “Jim Jones stated his age was 40 years old. He looked to be about 40 years old.” Dr. E. S. Portis swore that he did not know how old Jim. Jones was, but that “in his opinion he was about 40 years of age.” The question as to whether the age of the deceased was knowingly and wilfully misstated with intent to deceive and defraud the insurance company was submitted to the jury, as was also the question as to whether the policy was taken out as the result of a conspiracy between Jones and Primo (it being alleged that the latter had no .insurable interest in Jones), and whether or not this was a scheme or device to cover a wagering policy and a speculative contract. All these questions were, upon conflicting testimony, submitted to the jury, and their verdict was against the foregoing contentions of the insurance company. There is evidence to support the verdict rendered, and it is approved by the judge who tried the case.

Judgment affirmed.

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


author: Buoodworth, J.

text:
    18471.
    PIERCE v. THE STATE.
    The verdict, being supported by evidence and approved by the trial judge, will not be disturbed by this court.
    Criminal Law, 16 C. J. p. 922, n. 3; 17 C. J. p. 255, n. 53; p. 267, n. 99; p. 271, n. 41.
    Intoxicating Liquors, 33 C. J..p. 761, n. 53.
    Decided December 13, 1927.
    Possessing intoxicating liquor; from Murray superior court— Judge Pittman. August 26, 1927.

      H. H. Anderson, for plaintiff in error.

      John G. Mitchell, solicitor-general, contra.
   Buoodworth, J.

“The decision of every issue of fact is exclusively for the jury.” Davis v. Kirkland, 1 Ga. App. 5 (58 S. E. 209). “No principle of law is founded upon better reason or has been more strictly adhered to by this court than that the jury are the proper judges of the weight and sufficiency of testimony and of the credibility of witnesses, and this court will not disturb the verdict of a jury where there is evidence to support its findings.” Unity Cotton Mills v. Hasty, 19 Ga. App. 590 (2) (91 S. E. 916), and cit.

Judgment affirmed.

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


author: Broyles, O. J.

text:
    18472.
    Robertson v. The State.
    Criminal Law, 16 C. J. p. 764, n. 54.
    Intoxicating Liquors, 33 C. J. p. 762, n. 55.
    Decided December 13, 1927.
    Possessing liquor; from Murray superior court—Judge Pittman. September 12, 1927.
    A five-gallon glass jug with about a quart or a half-gallon of whisky in it was found in a hollow stump beside which Robertson, the defendant, was squatting, reaching down into the stump, about a quarter of a mile from his house and on his land. He “did not try to get away or give any trouble.” A witness for the defendant testified that he had previously discovered the liquor in the stump and told the defendant about it; and the defendant, in his statement at the trial, said that he knew nothing about the whisky until informed about it, and that he was looking for it when the State’s witnesses came up.

      II. H. Anderson, Stafford B. Brooke, for plaintiff in error.

      John C. Mitchell, solicitor-general, contra.
   Broyles, O. J.

The evidence tending to connect the accused with the ' offense charged was wholly circumstantial and was not sufficient to exclude every reasonable hypothesis save that of his guilt. It follows that his conviction was unauthorized, and the court erred in refusing to grant a new trial.

Judgment reversed.

Jjulce and Bloodworth, JJ., eoneur.


text:
    18473.
    Thornton v. Mundy.
    Appeal and Error, 4 C. J. p. 864, n. 33, 34.
   Broyles, C. J.

1. None of the grounds of the amendment to the motion for a new trial show cause for a reversal of the judgment below.

2. Under all the facts of the case'as disálosed by the record, this court can not hold that there was no evidence authorizing the verdict, and, the finding of the jury having been approved by the trial court, and no reversible error of law appearing, this court is without authority to interfere. Judgment affirmed.

Decided December 13, 1927.

Complaint; from Clayton superior court—Judge Hutcheson. July 15, 1927.

J. J. Barge, for plaintiff in error. W. M. Wright, contra.

Luloe and BloodwortTi, JJ., eoneur.


text:
    18474.
    CAVIN v. McWHORTER.
    Dismissal of certiorari proceedings which were in legal and proper form was not proper; but it appearing that the intention of the superior court was to overrule the certiorari, this court will decide the ease on its merits.
    Under the Civil Code (1910), §§ 3705, 3707, the title to the bale of .cotton and the cottonseed levied on, of a crop raised by the claimant, a cropper, on land of his landlord, the defendant in execution, was in the landlord, and not in the cropper, the crop not having been divided between them and the cropper being indebted to the landlord for supplies. The property levied on, therefore, was not subject to the execution, and the judge of the superior court erred in not sustaining the certiorari from the verdict in the justice’s court which found the property subject.
    Certiorari, 11 C. J. p. 198, n. 12.
    Crops, 17 C. J. p. 383, n. 48.
    Execution, 23 C. J. p. 330, n. 64.
    Decided December 13, 1927.
    Certiorari; from Chattooga superior court—Judge Maddox. August 1, 1927.

      Wesley Shropshire, for plaintiff in error. J. M. Bellah, contra.
   Luke, J.

This case arises out of a judgment of the superior court “dismissing” a certiorari from a jury’s verdict in a claim case in a justice’s court, finding certain property subject to an execution. Briefly stated the record presents the following case: Cavin, a resident of Chattooga county, Georgia, had a farm lying partly in that county and partly in Alabama. Bowman, a half-cropper of Cavin’s, lived on the Alabama part of the farm and produced thereon a bale of cotton and 618 pounds of cottonseed. The property was levied on under an attachment sued out by McWhorter against Bowman as a nonresident. Cavin claimed the property and assumed the burden of proof. The property was levied on while Bowman was taking it to market with Cavin’s wagon. The crop had not been divided, and Bowman owed Cavin $50 for supplies.

1. Since the certiorari proceedings appear to have been in proper and legal form, the superior court should not have “dismissed” the certiorari.

(a) But since it appears that the intent of the court was to “overrule” the certiorari, we deem it proper to decide the case on its merits.

2. The ease is controlled by the laws of Georgia; and, under sections 3705 and 3707 of the Civil Code (1910), the title to the property levied on was in Cavin, the landlord, and not in Bowman, the cropper. It follows that the judgment'of the superior court was error.

Judgment reversed.

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


text:
    18475.
    MAYS v. WILLINGHAM, solicitor-general.
    “Questions of contempt are for the court treated with the contempt; and its decision ought to he final, except, perhaps, in the case in which the decision shows an enormous abuse of the discretion.” No abuse of discretion is shown in this case.
    Contempt, 13 C. J. p. 22, n. 21; p. 87, n. 50; p. 104, n. 19; p. 105, n. 36.
    Decided December 13, 1927.
    Contempt; from Butts superior court—Judge Persons. August 24, 1927.

      H. M. Fletcher, for plaintiff in error.

      Frank B. Willingham, solicitor-general, contra.
   Bloodworth, J.

A rule for contempt of court was filed against two parties who were defendants in a ease in Butts superior court, and against the bailiff who had charge of the jury while the case was being tried. In some respects this rule is without a parallel in contempt cases. The bailiff had been’ acting in that capacity for that court from term to term for more than thirty years. One of the defendants to the case on trial, J. W. Mays, was charged with giving the jury a carton of cigarettes. The third of the trio who was ruled, Dr. J. R. Strickland, was a party to the case, and was not only a practicing dentist but also a member of the bar. The cigarettes were delivered by Mays to the bailiff practically in the presence of the jury, and this act was seen by some of them. The liquor the bailiff received from the hands of Dr. Strickland and delivered it to the jury in their room. It is rather a coincidence that Hon. G. Ogden Persons, who presided at the trial of the contempt case, and Hon. F. B. Willingham, who represented the State in that ease, and the writer of this opinion, are all residents of the little city of Forsyth in Monroe county.

In the oral judgment pronounced by Judge Persons and incorporated in the record, he said in part: “I do not think any institution that the Anglo-Saxon race enjoys to-day is more important than the jury trial. It is the most sacred privilege that a citizen of this republic enjoys. Jury trial means that the rights which are guaranteed under the constitution of the United States and the constitution of the State of Georgia shall be protected. There is no other power which decrees the enforcement of these rights, but these rights can only be procured in the court-house where judges are sworn to enforce the law, and where jurors are sworn to enforce the law; and it is only by a verdict of the jury that we can protect life, liberty, and property in this republic under our form of government. . . And I say to these two men who are now arraigned before this court under this rule, that whenever the time comes that the sacredness of the jury-box will be invaded either directly or indirectly, or by any character of influence, whether of a criminal order or any other kind, justice will flee from this court-house, and no citizen who comes into this court-house will have any assurance that he is going to have a fair and impartial trial of his case before twelve true and impartial men, sworn to do their duty, whose oath shall be accepted by a court of justice.”

The solicitor-general, in his brief, said in part: “The sole question is: Did the court commit error in holding Mays guilty of a contempt? We respectfully insist that the trial courts have always been given free rein in adjudging these questions. The judges of the superior courts are on the ground, familiar with conditions, aware of the local effect of the alleged contumacious acts, and, with all the facts fresh before them, are in position to deal justly and fairly. The case of Cabot v. Yarborough, 27 Ga. 476, has never been quoted except approvingly; the headnote is^. as follows: ‘Questions of contempt are for the court treated with the contempt; and its decisions ought- to be final, except, perhaps^in the case in which the decision shows an enormous abuse of the discretion/ In the case of Howard v. Durand, 36 Ga. 346, 358 [91 Am. D. 767], the Supreme Court said: ‘It has often been decided that the action of the superior courts in granting or refusing injunctions will not be controlled, except when it may appear there has been a flagrant abuse of discretion. The same rule should apply to the action of the courts relative to the punishment of parties alleged to be contumacious. Whether a contempt of court has been committed which should be punished,, may generally be safely left to the discretion of the circuit judges. They are not likely to fail in enforcing due respect to their orders; and their action in such cases should be final, unless there is something in the decision to show a most flagrant abuse of the discretion. Cabot v. Yarborough, 27 Ga. 476.' See also In re Fite, 11 Ga. App. 665 [76 S. E. 397], for a full and clear elaboration of the law governing such cases.”

Under the law announced above' and under the facts of the case, the presiding judge did not abuse his discretion when he held plaintiff in error guilty of contempt. “The majesty of the law must be -maintained; its mandates must be implicitly obeyed.”

Judgment affirmed.

Broyles, C. J., and Dulce, J., concw.