Volume 29 — Georgia Appellate Reports

<p>The instruction complained of, as authorizing the jury to act upon their belief without regard to the evidence, must be considered in connection with its context, and, so considered, is not cause for a new trial.</p> <p>The verdict, being supported by some evidence and approved by the trial judge, can not be disturbed by this court.</p>

<p>Indictment for larceny of cow; from Wilkes superior court — Judge Shurley. May 20, 1922.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Certiorari; from Glynn superior court — Judge Highsmith. May-29, 1922.</p>

<p>Action on contract; from Fulton superior court — Judge George L. Bell. May 13, 1922.</p>

Indictment for murder; from Ben Hill superior court — Judge Gower. June 24, 1922. Application for certiorari was denied by the Supreme Court. Under an indictment charging Fred Stubbs with murder he was convicted of voluntary manslaughter.

<p>Complaint; from Haralson superior court — Judge Irwin. June 17, 1922.</p>

<p>Conviction of assault with intent to murder; from Houston superior court — Judge Mathews. June 29, 1922.</p>

<p>The defendant’s statement at the trial was not unduly disparaged by the instruction to the effect that the jury should not consider his statement that he had been tried in the Federal court for the same offense and acquitted; nor was the charge on the statement erroneous for any other reason assigned.</p>

<p>Accusation of possession of liquor; from.city court of Macon — Judge Gunn. July 7, 1922.</p>

<p>Conviction of manslaughter; from Effingham superior court — .Judge Strange. August 12, 1922.</p>

<p>Affidavit of illegality of execution; from city court of Swainsboro — Judge Kirkland. June 19, 1922.</p>

<p>Action on contract; from city court of Brunswick—1 Judge Butts. June 12, 1922.</p>

<p>Complaint; from city court of Americus — Judge Harper. May 14, 1922.</p>

<p>Action for damages; from city court of Atlanta — Judge Reid. August 24, 1921.</p>

<p>1. The- presumption of negligence which arises against a railroad company upon proof of injury to personal property by the running of its train is a presumption only of the negligence alleged in the plaintiff’s petition, but where the suit instituted by the plaintiff is in a justice’s court and is based upon a summons, according to the practice in such courts, and there is no petition alleging negligence, the presumption of negligence will apply to,' and therefore authorize a finding upon, any theory of negligence deducible from the facts appearing from the evidence adduced upon the trial, and the plaintiff will be entitled to all legitimate inferences consistent with the facts that will authorize a finding that the defendant was negligent. Such inferences in behalf of the plaintiff, when taken in connection with the rebuttal testimony of the defendant, may constitute an issue of fact as to negligence.</p> <p>2. Where it appears, from the evidence set out in the petition for certiorari, that the verdict was authorized, and the petition contains no assignment of error which would authorize the judge of the superior court to exercise his discretion in setting the verdict aside, but only complains that the verdict rendered is contrary to law, as being without evidence to support it, it is the duty of the judge of the superior court to whom the petition is presented to refuse to sanction the petition.</p>

<p>Complaint; from city court of Thomasville — Judge W. H. Hammond. January 26, 1922.</p>

<p>Complaint; from city court of Americus — Judge Harper. January 22, 1922.</p>

<p>Distraint; from city court of Millen — Judge Dekle. January 30, 1922.</p>

<p>Action on contract; from city court of Floyd County — Judge Nunnally. February 24, 1922.</p>

<p>Trover; from city court of Americus — Judge Harper. February 25, 1922.</p>

<p>Action for damages; from city court of Macon — Judge Gunn. January 21, 1922.</p>

<p>Complaint; from Fulton superior court — Judge Ellis. February 3, 1922.</p>

<p>Action for damages; from Fulton superior court — Judge Pendleton. March 13, 1922.</p>

Complaint; from city court of Greensboro — Judge Fisher. January 19, 1922. C. J. Davison & Company sued Cr'off Davis for a balance of $335.44 principal, besides interest, alleged to be due upon a note dated February 14, 1913, originally for tbe sum of $900.

<p>Certiorari; from Grady superior court—Judge E. C. Bell. March 23, 1922.</p>

<p>Trover; from city court of Hall county — Judge Sloan. Jan uary 7, 1922. 1 234'</p>

<p>Certiorari; from Chatham superior court — Judge Meldrim. February 3, 1922.</p>

<p>Certiorari; from Bibb superior court-—-Judge Mathews. February 35, 1933.</p>

<p>Certiorari; from Fulton superior court — Judge Pendleton. February 2, 1922.</p>

<p>Complaint; from Chatham superior court — Judge Meldrim. February 2, 1922.</p>

<p>Action for breach of warranty; from city court of Americus — Judge Harper. January 19, 1933.</p>

<p>1. A company which does not install the gaspipes of a customer and has no duty of inspection or control over them is not responsible for their proper maintenance or condition so as to render it liable for injuries caused by a leak of which it has no knowledge. Thus, where a landlord in such a case applies for gas, and a workman of the gas company reports to him for the purpose of making the connection, it is incumbent upon the landlord to protect his own interest and that of his tenants by by seeing that such pipes are in proper and safe condition; and under such circumstances the company would not be liable to the landlord-or to his tenants on account of its failure to inspect the pipes upon the premises, unless at the time the gas was turned on the workman either knew, or in the proper performance of his own particular work should have become aware, of circumstances reasonably indicating the existence of such defects and dangers. The rule is similar where a tenant applies for gas. It is his duty to protect his ówn interest and that of those occupying the premises under his control by seeing that the pipes within such premises are in a safe and proper condition. Where the application is made by a tenant, it is, however, the duty of the company, upon making the connection, to exercise all reasonable and proper diligence for the protection of other tenants who have not applied for gas, by inspecting all pipes through which the gas upon being turned on might escape into other apartments of such independent tenants, or into the rooms of the same apartment, when the company actually knows or has reasonable grounds to suspect, the existence of rooms which are not in the custody or under the control of the tenant dealt with. Christo v. Macon Gas Co., 18 Ga. App. 454 (89 S. E. 532) ; 12 R. C. L. 909 (§ 49) ; Schmeer v. Gas Light Co., 147 N. Y. 529 (42 N. E. 202, 30 L. R. A. 653) ; Greed v. MfrS. Light &c. Go., 238 Pa. 248 (86 Atl. 95); Skogland v. St. Paul Gas Light Co., 89 Minn. 1 (93 N. W. 668).</p> <p>2. In a suit against a gas company for damages growing out of an alleged homicide on account of escaping gas, where the petition shows that the deceased, under an arrangement with the landlord, continued to hold and occupy one room of a specified apartment in a certain building, and that the prospective tenant of the other portions of the apartment had applied for gas, and that the defendant in connecting the gas in response to such request was negligent, (1) in that the defendant, upon turning on the gas, failed to inspect the condition of the pipes and outlets in the room thus held and occupied by the decedent, and (2) in not inspecting the meter after the connection had been made, so as to ascertain whether or not gas was escaping into any of the rooms served by it, and where there was evidence such as could authorize a finding in favor of the plaintiff upon each of these contentions, a verdict and judgment in favor of the plaintiff cannot be set aside because it appears from the evidence that the application for gas was in fact signed by the -landlord, and not by such prospective contiguous tenant, where it also appears that the application of the landlord (who did not in fact designate herself as such) was received on condition that, if accepted, it was subject to indefinite delay as to when the work should be performed, and where it indisputably appears that the company’s workman, in subsequently responding to such request, did not undertake to report to or in any wise consult, or even to see, the landlord, but in the execution of the work, including turning on the gas, dealt exclusively with the prospective tenant of the other portions of the apartment for which gas was desired. Under such circumstances the fact that the application was made by the landlord would not relieve the company of its duty to exercise all reasonable and proper diligence in inspecting all pipes in the building leading to apartments other than those of the tenant thus deal with, and to other portions of the same apartment which the defendant knew or had reasonable ground to suspect were outside of the tenant’s custody and control. This duty it could not delegate to the tenant with whom it thus actually dealt.</p> <p>.3. The trial judge, who, at the request of the defendant, charged the jury on the law governing where a request for gas is made by the landlord, as well as when made by the tenant, did not err in qualifying the charge so as to permit the jury to consider the special circumstances and conditions dealt with in the preceding division of the syllabus.</p> <p>4. The mere voluntary writing off of a part of the verdict by the plaintiff is not in itself a ground for reversal, where it does not appear that this was done on the suggestion of the presiding judge, or that his refusal of a new trial was influenced by the reduction of the verdict; nor can a new trial be granted on account of the size of the original verdict, unless the amount as found by the jury is so excessive as to lead the court to suspect bias or prejudice on their part. Seaboard AirLine Ry. v. Randolph, 129 Ga. 796, 798 (59 S. E. 1110). The bill of exceptions states as follows: “ Defendant’s said motion for a new trial and the amendment thereto came on for hearing before the Honorable W. D. Ellis, Judge, on December 27, 1921, when said motion and the amendment thereto, the recitals of fact therein being approved, were argued to the court and submitted for the court’s consideration. Thereafter, on February ,17, 1922, the plaintiff, through her attorneys of record, wrote off $5,000 from the verdict and judgment in favor of the plaintiff, thereby leaving the said verdict and judgment to stand for $10,000. Thereupon, on February 17, 1922, the court ordered that defendant’s motion for a new trial be overruled upon each and every ground contained in the original and amended motion for a new trial, and a new trial was denied.” The use of the word “ Thereupon ” renders the sentence in which it is employed somewhat ambiguous, for the reason that the word carries either the meaning “ following upon, or in consequence of.” Standard Dictionary. Since, however, one of the ordinary uses of the word is to mark the succession of events in time, and since the pleading of the party alleging error, as contained in the bill of exceptions, is to be construed more strongly against him, it eanrfot be held, as a matter of law, that the trial judge, in refusing the new trial, was influenced by the action of the plaintiff in writing off a portion of the verdict.</p> <p>5. The grounds of the motion for a new trial not controlled by the foregoing rulings and dealing with portions of the court’s charge, with exceptions. taken to his failure to charge, with his action in permitting a witness to testify who had already testified by interrogatories, where sequestration of the witnesses had been asked for, and with exceptions taken to the admission and to the exclusion of evidence, have been carefully considered; and for none of the reasons assigned does this court feel authorized to reverse the judgment of the court below in refusing to grant a new trial.</p>

<p>Complaint; from city court of Lexington — Judge Sutton presiding. February 23, 1922.</p>

<p>Levy and claim; from city court of Jefferson — Judge Bryson. 'March 24, 1922.</p>

<p>Action for damages; from Fulton superior court — Judge Pendleton. March 24, 1922.</p>

<p>1. The words “ payment guaranteed,” signed by the payees and entered upon the back of a promissory note which contains a retention of title to property therein described, to secure its payment, is sufficient as an endorsement to transfer the title both of the note and of the property. Hendrix v. Bauhard, 138 Ga. 473 (1) ; Civil Code (1910), § 4276.</p> <p>2. “ Where one sells personal property, taking a purchase-money note reserving title in the property until the note is paid, the holder of such note may recover the property in an action of trover upon failure of the maker of the note to pay the same.” Jordan Mercantile. Go. v. Brooks, 149 Ga. 157 (99 S. E. 289).</p>

<p>Action for money had and received; from Dooly superior court — Judge Gower. March 15, 1922.</p>

<p>Action for damages; from , Warren superior court — Judge Shurley. April 4-, 1922.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Trespass; from Dade superior court — Judge Tarver. March 31, 1922.</p>

<p>•Condemnation under liquor law; from Dade superior court — Judge Tarver. April 20, 1922.</p>

<p>Complaint; from city court of Eeidsville—Judge Cowart. April 3, 1922.</p>

<p>Condemnation under liquor law; from Cobb superior court — Judge Blair. April 15, 1922.</p>

<p>Certiorari; from Warren superior court — Judge Shurley. April 6, 1922.</p>

<p>Complaint; from Richmond superior court — Judge Henry C. Hammond. April 1, 1922.</p>

<p>Action on benefit certificate; from Pulaski superior court — Judge Graham. March 16, 1922.</p>

<p>Certiorari; from Bibb superior court — Judge M. D. Jones. April 10, 1922.</p>

<p>Complaint; from Wilcox superior'court — Judge Gower. March 20, 1922.</p>

<p>Foreclosure of lien; from city court of Floyd county-—-Judge Nunnally. March 7, 1922.</p>

<p>Certiorari; from Fulton superior court — Judge Ellis. March 29, 1922.</p> <p>The plaintiffs sold certain cheeses under terms which, according to some evidence, were silent as to time of payment, and according" to other evidence provided for payment on delivery. The goods were delivered at the purchaser’s place of business by the plaintiffs’ driver without obtaining payment of the agreed purchase-price. On the following morning the plaintiffs demanded of the purchaser the goods or the money, but he then informed them that on the day of purchase he resold the goods to the defendant merchants. Under the undisputed evidence these merchants bought in good faith in the regular course of trade, without notice of the plaintiffs’ rights.</p>

<p>Levy and claim; from Troup superior court — Judge Roop. April 27, 1922.</p>

<p>The law of conspiracy can apply only to subjects capable of entertaining a criminal intent; and where, in a condemnation proceeding by the State against an automobile, under the act of March 28, 1917 (Act Ex. Sess. 1917, p. 16), it indisputably appears that the particular-vehicle against which the proceeding was brought was not being used for the purpose of conveying any liquors therein, the action is not maintainable on the theory that at the time of the seizure the owner was using the automobile as a pilot for other cars which were carrying liquor, and that the defendant vehicle is thus to be held responsible for “ assisting, aiding, and abetting the other cars in the transportation of intoxicating liquors.”</p>

<p>Certiorari; from Morgan superior court — Judge Park. May 5, 1922.</p>

<p>Affidavit of illegality; from Miller superior court — Judge Worrill. April 27, 1922.</p>

<p>Complaint; from Floyd superior court—Judge Nunnally. April 6, 1922.</p>

<p>Complaint; from Hart superior court — Judge W. L. Hodges. April 22, 1922.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Action for breach of contract; from Muscogee superior court — W. G. Love, judge pro hac vice. May 10, 1922.</p> <p>The contract in question consisted of a letter in which the plaintiff proposed to work for the defendant for twelve months from January 1, 1921, at the rate of $200 per month, and a written acceptance by the defendant as follows: “ The above proposition is hereby accepted this 22d day of December, 1920, service to begin January 1st, 1921, and to continue twelve months, conditioned on your conduct and services being satisfactory to us, we to be the sole judge in reserving the right to terminate this contract upon thirty days’ notice at any time.”</p>

<p>Action for slander; from city court of Hall county — Judge J. B. Jones presiding. May 15, 1922.</p>

<p>Action on contract — appeal; from Decatur superior court — Judge E. C. Bell. May 11, 1922.</p>

<p>Certiorari; from Cherokee superior court — Jucige Blair. May 8, 1922.</p>

<p>Action on contract; from Gordon superior court — Judge Tarver. May 4, 1922.</p>

<p>Levy and claim; from Jenkins superior court — Judge Strange. April 13, 1922.</p>

<p>Action for breach of contract; from Putnam superior court — Judge Park. May 19, 1922.</p> <p>The excerpts from "the charge of the court which are excepted to are as follows: “ The defendant, on the other hand, contends that in the month of September in the year 1920 the defendant, through Mr. Gurry, made a contract with the plaintiff in this case to receive a certain amount of wood at six dollars per cord, and the defendant contends that under the terms of this contract no specified amount of wood was agreed on between the plaintiff and the defendant in this ease that the defendant agreed to accept under that contract. The defendant contends that in the month of September in the year 1920 the price of coal was very high, and that he informed the plaintiff in this case that he would accept wood up to the time he could buy the coal at a reasonable price, and that the only contract that the defendant entered into with the plaintiff in this case was that the wood was to be delivered Friday of each week, and the defendant contends that there was no definite amount as to number of cords that was to be delivered to the defendant in this case, and that the defendant had the right under the contract to inform the plaintiff at any time that they did not care to accept any more wood; that in pursuance of that contract they only received 96 cords of wood, and that they paid the plaintiff for the amount of the 96 cords at six dollars per cord. And the defendant contends by the terms of this contract they received all the wood from the plaintiff in this case that they agreed to receive, and that they paid the plaintiff for the amount of wood they did receive. And the defendant contends that was no breach of this contract, and under the laws and facts of this case the plaintiff would not be entitled to recover any sum whatever.”</p> <p>“ When you go to your jury room to ascertain what is the truth in this case ask yourselves the questions: What was this contract that was made in the month of September between the plaintiff in this case and Mr. Gurry representing the defendant in this case? If you reach the conclusion that by the terms of this contract Mr. Gurry only agreed to accept a liniited amount of wood from the plaintiff in this case, and he was to desist in delivering wood after Mr. Gurry notified him he did not want any more wood, and you reach that conclusion in this case, then the court charges you that the plaintiff would not be entitled to recover in this case, and if you reach the conclusion those are the facts the court charges you that your verdict should he in favor of the defendant in this case. The law allows persons that are not laboring under disabilities to make any contracts that they see proper to enter into. The law does not seek to make contracts for parties, but leaves all parties to make such contracts as they see proper. And a party can make either a conditional or an unconditional contract under the laws of the State of Georgia.”</p> <p>In the motion for a new trial it is alleged that the charge of the court did not fairly submit to the jury the following contentions made by the defendant as shown by its answer:</p> <p>“That during the year 1920, on account of the high prices of coal, Eatonton Cotton Mills began using green pine cord-wood for fuel; that some time during September of said year plaintiff solicited of F. W. Gurry, the agent in charge of defendant’s business, an order for some green pine wood; that defendant advised plaintiff at said time as to why it was using wood for fuel, and informed him that as soon as the price of coal became low enough to be used profitably for fuel, said mill would have no further use for wood; that defendant explained to plaintiff that for said reason it could not enter into any contract whatever for the purchase of any specific quantity of wood; and that plaintiff then agreed to begin delivering cord-wood to defendant with the understanding that he was to be paid for whatever quantity was delivered during the week at the end of that week, and that the delivery of wood was to be discontinued by him whenever notified by defendant to do so.”</p>

<p>The discretion of the trial judge in granting a new trial will not be controlled by this court under the evidence in this case.</p>

Action for damages; from city court of Atlanta — Judge Eeid. December 5, 1921. Application for certiorari was granted by the Supreme Court. Gordon Pece filed a complaint for damages against the Fulton Ice and Coal Company and the Standard Gas Products Company, in four counts. The first named company will hereinafter be referred to as the Fulton Company, and the other as the Standard Company.

<p>Application for discharge in trover; from city court of Swainsboro ■—• Judge Kirkland. March 9, 1922.</p>

<p>Garnishment; from city court of Tifton—Judge Price. May 9, 1922.</p>

<p>Complaint; from city court of Nashville-—-Judge W. E. Smith. February 23, 1922.</p>

<p>The verdict finding the accused guilty of “ shooting another ” was not void for uncertainty, its reasonable construction being that he was guilty of the offense of shooting at another, not in his own defense nor under other circumstances of -justification.</p> <p>That part of the verdict which fixes the sentence at three years is equivalent to one fixing the maximum and minimum punishment at three years.</p>

<p>A county board of education is not’ a body corporate with authority to sue and be sued, in the ordinary sense.</p>

Complaint; from Bibb superior court — Judge M. D. Jones. February 6, 1922. Application for certiorari was granted by the Supreme Court. P. 0. Holliday, as trustee in bankruptcy of the Southern Druggists Syndicate, instituted suit against Ben S. Persons, E. G. Jacobs, George D. Case, and J. A. Baugh, to recover certain amounts alleged to be due the corporation by the defendants on unpaid subscriptions to stock in the corporation.

<p>Foreclosure of lien from city court of Waynesboro — Judge W. H. Davis. January 23, 1922.</p>

<p>Certiorari; from Seminole superior court — Judge Worrill. February 22, 1922.</p>

<p>Complaint; from city court of Richmond county — Judge Black. February 24, 1922.</p>

<p>Action for damages; from city court of Savannah-—Judge Freeman. February 15, 1922.</p>

<p>Action for breach of contract; from Fulton superior court — Judge Pendletop. December 19, 1921.</p>

<p>' Action on insurance policy; from Ben Hill Superior court'—■ Judge Gower. March 18, 1922.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Action, for damages; from De Kalb superior court — Judge Hutcheson. April 28, 1922.</p>

<p>Complaint; from city court of Richmond county — Judge Black. May 17, 1922.</p>