3. BAIL 75 PROCEEDINGS TO FORFEIT DEFENSES.

The defendant's plea setting up these facts was good and sufficient in a proceeding to forfeit the bond for his appearance to answer for the crime charged in the indictment.

[Ed. Note. For other cases, see Bail, Cent. Dig. §§ 309-312, 315-321; Dec. Dig. 75.] 4. CERTIORAri Overruled-Error.

The judge of the superior court erred in overruling the certiorari.

Error from Superior Court, Henry County;

W. E. H. Searcy, Jr., Judge.

Action by J. M. Slaton, Governor, against Lark Brock and others. Judgment for plaintiff, and defendants bring error. Reversed. E. J. Reagan, of McDonough, for plaintiffs in error. Paul Turner, of McDonough, and E. M. Owen, of Zebulon, for defendant in

error.

WADE, J. Judgment reversed.

(18 Ga. App. 141)

CHANDLER v. STATE. (No. 7046.)

-[if there is any reasonable inference in support of the defendant's innocence which can be as rationally deduced from the proof submitted as that he is guilty; and the writer would by no means relax the stringency of this rule or modify any previous utterance of this court to the effect that a conviction upon mere suspicion is contrary to law. In the present case the principal complaint seems to be that no single circumstance in

proof is, of itself, sufficient to warrant the conviction; that the testimony of some of in conflict with their statements upon dithe witnesses upon cross-examination was rect examination, and that the defendant's possession of the pants alleged to have been stolen was not shown to be so recent as to give this circumstance probative value. One of the witnesses testified positively to the loss of the pants, and another testified equally positively as to the identity of the missing pants with those which the defendant was wearing when he was arrested. Even though the testimony of the witnesses may be somewhat contradictory, it is still within

(Court of Appeals of Georgia. May 19, 1916.) the prerogative of the jury (or of the judge

(Syllabus by the Court.)

exercising the functions of a jury) to credit the witnesses. Judicial knowledge will exclude statements which are so manifestly at variance with one's knowledge and with universal experience as to be inherently incredible; but, while the testimony of some of the witnesses may have been so improb

LARCENY 55, 64(6), 68(3)—CRIMINAL LAWWITNESSES SUFFICIENCY OF EVIDENCE QUESTIONS OF FACT. The circumstances in proof were sufficient to exclude every other reasonable supposition than that the accused had stolen the pants alleged to have been stolen, and which were found in his possession about six weeks after he was seen in the owner's store looking at them. The pro-able as to authorize the jury to discredit bative value of his explanation of his possession them, no fact stated was so manifestly in was a matter addressed to the judge, who by conflict with the universal knowledge of consent tried the case without a jury. And though the fact that he had given two contra- mankind as to render it intrinsically incredidictory explanations would not, of itself, be ble. The defendant examined some pants at sufficient to authorize a conviction of larceny, the prosecutor's store. Very shortly afterit might tend to discredit the statement made by ward they were missed. There was testihim on his trial, in which he attempted to explain his possession of the property in question. mony to the effect that about six weeks later [Ed. Note.-For other cases, see Larceny, the accused was found wearing the missing Cent. Dig. 88 152, 164, 165, 167-169, 175, 181; pants, and that they were well worn. The Dec. Dig. 55, 64(6), 68(3).] fact that there were no marks or tags or Error from City Court of Douglas; W. C. cost marks upon the pants at that time, to Lankford, Judge. serve for identification, and that there may Ed Chandler was convicted of larceny, and have been other pants of a similar kind, brings error. Affirmed.

Chastain & Henson, of Douglas, for plaintiff in error. W. A. Wood, Sol., and McDonald & Willingham, all of Douglas, for the State.

might suggest the improbability of the defendant's guilt and authorize the trial judge to acquit him, but would not require an acquittal. The coincidence of his examination of the pants in the prosecutor's store with the loss of the pants, the positive testimony RUSSELL, C. J. In this case exception that the pants afterwards worn by him were is taken to a judgment overruling a motion the missing pants, and the two contradictory for new trial, based only upon the general explanations of his possession as given by grounds. By consent the presiding judge him, called for an explanation on his part; passed upon the issues of fact involved, with- and, if his explanation was not satisfactory, out the intervention of a jury. It is insist- the presumption that the possessor of the ed by learned counsel that the judgment find- goods was a thief could be treated as coning the accused guilty of the larceny of a clusive. In this case the explanation was pair of pants is contrary to law, because it not satisfactory, and the rule which declares is without any evidence to support it. The that, where a conviction depends wholly upconviction depended wholly upon circumstan-on circumstantial evidence, the law will not tial evidence. This court recognizes that in warrant a conviction if there is any reasonsuch a case a conviction is contrary to law able hypothesis deducible from the evidence

As to the point that possession of the stolen property six weeks after the larceny could not be considered as recent possession, see McGruder v. State, 71 Ga. 864. See, also, Park's Penal Code, vol. 6, p. 614, Catchword "Possession."

which is consistent with innocence, does not | binder and a wedge, and had tried to knock compel a jury to accept as true the defend- from the said locomotive another appliance ant's explanation of his possession. underneath said engine, known as the shoe, but the said shoe stuck, and could not be taken out of place"; that "it then became petitioner's duty, acting under the direction of Mr. Winn [the said foreman], to place what is known as the air jack under the driving wheel axle of said locomotive, and, by means of a lever and compressed air, the piston of said air jack would rise upward, catch underneath the said axle, and raise the same to the desired position; before beginning the operation of the said air jack petitioner advised the foreman then and there in

Judgment affirmed.

(18 Ga. App. 117)

WILLIAMS v. ATLANTIC COAST LINE R.
CO. (No. 6682.)

(Court of Appeals of Georgia. May 19, 1916.) charge of the work that he was afraid that

(Syllabus by the Court.)

MASTER AND SERVANT

217(3)-INJURIES TO SERVANT-ASSUMPTION OF RISK. Since the allegations of the petition disclose that the injury received by the plaintiff in the defendant's service resulted from the operation of a natural law, the effect of which the plaintiff could estimate as well as the master, and that he had equal means with the master of knowing the obvious danger incident to the performance of his duties in the place in which the injury occurred, and in which he was directed by the master to work, he assumed the risk, notwithstanding such direction and the assurance of safety given by the master.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 576; Dec. Dig. 217 (3).]

the shoe might drop off and hurt him, but the said Mr. Winn, then and there in charge of the work, advised petitioner that the shoe was all right, and would not drop out; whereupon petitioner then began to operate the said air jack, but he was not in such position under the engine that he could observe the said shoe, and, trusting in the assurances and direction of his employer, he then began to make preparation to operate the air jack;" that, "in order that the locomotive upon which he was working should be placed in proper position so that he might use the air jack, it was moved backward and forward by another locomotive operated by the

Error from City Court of Savannah; Da- aforesaid Mr. Winn until it was in the right vis Freeman, Judge.

Action by Dan Williams against the Atlantic Coast Line Railroad Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Oliver & Oliver, of Savannah, for plaintiff in error. P. W. Meldrim, of Savannah, for

defendant in error.

position, and, while thus being moved, the shoe underneath the engine dropped off, struck petitioner upon his right foot, severely bruising, contusing, crushing, and injuring

the same."

was guilty of negligence resulting in his alleged injuries, because the foreman whose orders it was his duty to obey "did not make a proper and careful inspection of the shoe of said engine before ordering petitioner to proceed with his work under said engine,” and because the company, through its foreman, negligently and carelessly ordered the plaintiff to perform a piece of work "which

The petition alleged the extent of the injury and the earning capacity of the plaintiff, and claimed damages in the sum of $2,500. The further allegation was added by amendment, that the foreman in charge of the WADE, J. Dan Williams brought suit against the Atlantic Coast Line Railroad shoe was all right and would not drop out, work, after advising the plaintiff that the Company, alleging in his petition that the de-directed petitioner to continue with his fendant owned and operated certain repair work." The plaintiff still further amended shops at which it maintained what is known his petition by alleging that the defendant as a "drop pit," across which the tracks of the company extended, so that, when it became necessary to repair from underneath any locomotive or car, the same could be moved upon the track extending across the drop pit, and the employés of the defendant, by working in the drop pit, could make the needed repairs; that the plaintiff was employed by the defendant company as a "machinist's helper," and his duties required that he should work on locomotives as they came said foreman should have known was daninto the shop, and on October 6, 1914, he was, gerous, and which petitioner did not know in conjunction with other employés of the de- was dangerous, and could not have discoverfendant company, working on a locomotive, ed, in the exercise of ordinary care," and beunder the direction of a foreman of the de- cause the defendant, through its foreman, orfendant then and there in charge of the work; dered the plaintiff to work upon a dangerous that a locomotive was placed in position on and unsafe instrumentality and appliance, a track spanning the drop pit, and the plain- and to work in a dangerous and unsafe place, tiff, acting under the direction of the said and because the company was guilty of negliforeman, "had removed what is known as agence in ordering him, through its foreman,

"to work in a dangerous and an unsafe place | appears not to have resulted from any inherwhen he did not know, and had not ascer- ent defect or dangerous character or contained, that the place would be safe for pe- dition of the "drop pit," the place where he titioner to work in." was required to do his work in repairing the

A servant is bound to exercise skill and diligence, and takes upon himself the burden of establishing negligence on the part of the master and due care on his own part, where he seeks a recovery for injuries of this character.

The petition was demurred to generally, | defective machinery. and also on several special grounds, one of which was that the allegation that he would continue to endure pain and suffering "for a long period of time in the future” was too | vague and indefinite; another that the paragraph of the amendment alleging that the defendant was guilty of negligence "because the said company, through its foreman, ordered petitioner to work upon a dangerous and unsafe instrumentality and appliance," was vague and insufficient, since no facts were stated which rendered the instrumentality and appliance dangerous and unsafe. And the paragraph in the amendment which alleged negligence "because the foreman then and there in charge of said work ordered petitioner to work in a dangerous and an unsafe place" was demurred to for the reason that it was vague and insufficient, in that the facts were not stated that made the place where petitioner was ordered to work dangerous and unsafe. The court sustained the general demurrer, as well as the special grounds of demurrer above mentioned, and passed the following order:

"I think the foregoing grounds of special demurrer, the second ground of first special demurrer, and the general demurrer are all good and they are sustained. The petition is based upon an injury due to the operation of the law of gravity, and plaintiff cannot claim ignorance thereof. The case is dismissed."

Since, in our opinion, the court did not err in sustaining the general demurrer, it is unnecessary to consider in detail the special grounds referred to above. Unquestionably so much of the amendment to the petition as alleged negligence on the part of the defendant because the appliance upon which the plaintiff was required to work was unsafe and the place where his work was to be done was dangerous is without merit, since the allegations in the petition disclose that the plaintiff was a "machinist's helper," presumably familiar with his duties as such, as well as with the particular work he was called upon to perform at the time he was injured, and also familiar with the nature and character of the place where he was required to work.

"Where a master employs a servant to repair defective machinery, the rule as to furnishing reasonably safe machinery does not apply to the machine to be repaired. Green v. Babcock Lumber Co., 130 Ga. 469 [60 S. E. 1062]." Holland v. Durham Coal Co., 131 Ga. 715, 720, 63 S. E. 290, 292.

It is clear, then, that there could not be a recovery for the failure of the defendant to furnish "reasonably safe machinery" to be repaired; and no facts are stated in the petition upon which to base the conclusion of the pleader that the place furnished the plaintiff for his work was itself dangerous,

"No recovery can be had upon mere proof of negligence on the part of the master; but the of due care on his own part, that he was not plaintiff must show, in addition to the exercise aware of the danger, that his opportunities for knowing the existence of the danger were not equal to those of the master, and that in the have known of the danger. Civil Code, § 3131; exercise of ordinary care he could not himself W. & A. R. Co. v. Bishop, 50 Ga. 465; Brush Electric Light & Power Co. v. Wells, 103 Ga. Brewing Co., 113 Ga. 80, 38 S. E. 404; Mc512, 515, 30 S. E. 533; McDaniel v. Acme Donnell v. Central Railway Co., 118 Ga. 86, 89, 44 S. E. 840." Kilgo v. Rome Soil Pipe Manufacturing Co., 16 Ga. App. 737, 86 S. E. 82.

The servant assumes the ordinary risks of his employment, and to authorize a recovery for injuries incurred in connection therewith it must appear, as stated in the quotation from the Kilgo Case, supra, that he did not know and had not equal means with the master of knowing the existence of the defects or dangers, and by the exercise of ordinary care could not have known thereof. Civil Code 1895, §§ 2611, 2612. See, also, Baxley v. Satilla Manufacturing Co., 114 Ga. 720, 723, 40 S. E. 730. Neither is it necessary for the master to give warning of a danger that is obvious. Crown Cotton Mills v. McNally, 123 Ga. 35, 51 S. E. 13.

The main theory upon which the plaintiff based his right to recover was that the master, through the foreman, had expressly instructed him to undertake the work of repair in a position where his safety would be endangered by the falling of the metal "shoe" when the engine should be lifted up by means of a jack, and that, by advising him "that the shoe was all right and would not drop out," the master insured the safety of the place where he was directed to work, and of the operation he was instructed to undertake. It is true that the implied agreement on the part of a servant to assume the risks ordinarily incident to the service for which he is employed may be abrogated by a distinct order on the part of the master to use a dangerous appliance in a manner directed by the master, where the order is accompanied by an express or an implied assurance that the instrumentality which the servant is directed to use is safe; and under such circumstances the order of the master may amount to a waiver of his right to insist upon the servant's implied obligation to assume risks, and thereafter estop the master from asserting that the servant assumed the hazard attending the act which the master

peremptory command on the part of the master will not justify or excuse a servant in rashly exposing himself to a known and obvious danger." Cherokee Brick Co. v. Hampton, 16 Ga. App. 53, 54 (4), 84 S. E. 328. In Studevant v. Blue Springs Lumber Co., 16 Ga. App. 668, 85 S. E. 977, it was said:

"The fact that the vice principal of the defendant company (who was in charge of the mill and of the operation thereof, with authority to employ hands and give orders to the employés, all of whom were under his direction, including the plaintiff) directed the plaintiff to perform a particular act would not relieve the plaintiff from the legal consequence of assuming the risk of an obvious danger and attempting to replace a belt while the machinery to which it was attached was in motion, where nothing appears to indicate any less certain, definite, and precise knowledge of the hazard thereby incurred than the superintendent himself was in

possession of."

port sustaining it aloft was removed. Nor can it be said that the master was any better aware of this fact than the servant. To the contrary, the servant, by reason of his location at the time of the injury (if it could by any chance be said that one knew better than the other what the probable result would be from the uncontrolled operation of the law of gravity), knew better than the master the dangers incident to the situation.

Among all the great forces of nature perhaps the dawning intelligence first makes acquaintance with gravity; for even the infant, before he is able to toddle along unaided, discovers that an object released from his feeble grasp will fall, and may produce pain if dropped upon his tender foot or hand, and during all the years which lie between infancy and old age the influence of this universal power is daily witnessed by every reaFrom the allegations in the petition it is soning person, and to some extent is often clear that the plaintiff was thoroughly ac- apparently noted and guarded against by anquainted with the place where he was re- imals supposed to be incapable of reason. quired to work. His duty was to repair de- The ordinary results to be expected from the fective, unsafe, and dangerous machinery, operation of the attraction of gravity are so and he was at the time of the injury in the well understood and so universally recognizvery place provided for that particular work, ed by mankind that we involuntarily dodge As he stood in the drop pit for the purpose of a falling object and avoid passing under or repairing the locomotive, he had entire knowl-near heavy objects insecurely or insufficiently edge of the existence and location of the supported aloft from the bosom of mother wedge and shoe, and of whatever danger earth, and it is just as natural for one incould be apprehended therefrom, since the petition alleges that he himself advised the foreman of the existence of such danger. He had removed the wedge and attempted to knock from the locomotive the "shoe," but the shoe stuck, and was not dislodged, and he thereupon caused the locomotive to be moved so that he might place a jack under the axle. He raised the locomotive by the use of a jack, and, the wedge being then removed by him, the shoe fell when the weight of the engine pressing upon it was removed. As learned counsel for the defendant face tiously, but aptly, says in his brief: In "fall-sition at the exact time than was the masing it was natural that the shoe should have sought the negro's foot." The shoe fell as a natural consequence, necessarily to be expect ed when the weight of the engine was removed and the influence of gravity was thereby allowed to assert itself.

Any extensive knowledge of the laws of physics cannot, of course, be expected of ordinary laborers, but the existence of those primal forces which govern the universe and control all matter, and which come necessarily under the observation of every man, whether learned or unlearned, master or servant, during the entire term of his natural existence, must be held to be within his knowledge at all times and places and under all conditions. Certainly the servant in this case had equal means with the master of knowing, and understood as thoroughly as did the foreman, representing the master and directing the laborers, that the attraction of gravity would draw forcibly to the earth a

The

stinctively to avoid placing himself beneath or near an unattached heavy, overhanging object as it is for the eye almost automatically to close when nearly approached by any missile or other foreign matter. plaintiff must necessarily, therefore, have known at the time he assumed or decided to remain in the position of risk that any jar or sudden movement would almost certainly detach the unsupported and heavy metal shoe from the engine, and that gravity would then inevitably bring it with dangerous momentum to the ground, and he was in far better po

ter (acting through its foreman) to know where and when the shoe would probably fall when the locomotive was moved, and to estimate the danger of the place and of his position when the fall occurred, notwithstanding his allegation that he was so situated that he could not at the time see the shoe itself. So far as appears, he knew how the shoe was attached to the engine, and that it was not fastened independently; he knew the considerable weight of the unsecured object overhanging him, and that it would be irresistibly drawn to the earth if dislodged by the movement of the locomotive, and would almost certainly strike and inflict an injury upon him; and yet he accepted the obvious risk and remained in the dangerous position after he had "jacked up" the engine and while it was being removed.

in

We think the trial judge did not err sustaining the general demurrer and dismissing the petition.

(18 Ga. App. 216)

SHEPHERD v. CITY OF JACKSON.

(No. 7132.)

I debt. The ruling is controlled by the decision of this court in Bowen v. Waxelbaum, 2 Ga. App. 521, 58 S. E. 784(2). Reasonably construed, the plea admitted that at the time the

(Court of Appeals of Georgia. May 31, 1916.) defendant gave the note he owed the plaintiff

(Syllabus by the Court.)

1. INTOXICATING LIQUORS 197, 236(7)—JURISDICTION-EVIDENCE.

The jurisdiction of the state courts to try persons charged with the offense of selling intoxicating liquors is exclusive, and a municipal court cannot punish for a violation of the state law. There may be cases in which proof of a single sale without more may not necessarily imply that the seller kept liquors for sale. Everett v. Vidalia, 14 Ga. App. 664, 82 S. E. 50. However, proof of a single sale, if made under such circumstances as to show either a continuing purpose on the part of the vendor to sell a stock of liquor, or to indicate that the particular liquor sold was kept for that purpose (Rooney v. Augusta, 117 Ga. 709, 45 S. E. 72; Reese V. Newnam, 120 Ga. 198, 47 S. E. 560), will suffice to authorize a conviction under a municipal ordinance forbidding the keeping of intoxicants for the purpose of unlawful sale.

[Ed. Note. For other cases, see Intoxicating Liquors, Cent. Dig. §§ 216, 309; Dec. Dig. 197, 236(7); Criminal Law, Cent. Dig. § 132.] 2. CRIMINAL LAW 1030(2)-PRESENTING QUESTION IN TRIAL COURT NECESSITY. It is too late to raise for the first time in a petition for certiorari questions which were not presented to the inferior judicatory whose judgment is to be reviewed. Therefore, since the question whether the defendant in the mayor's court was deprived of due process of law, within the meaning of that term in the federal Constitution, or was deprived of any other constitutional right by the refusal of the municipal court to exclude certain testimony upon motion, was not presented for determination of the trial court, neither the judge of the superior court in the first instance, nor this court upon review, can consider the point.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2620, 2653; Dec. Dig. 1030(2).]

3. REFUSAL TO SANCTION CERTIORARI.

There was no error in refusing to sanction the petition for certiorari.

Error from Superior Court, Butts County; W. E. H. Searcy, Jr., Judge.

Carrie Shepherd was convicted of violating an ordinance of the City of Jackson, and brings error. Affirmed.

on an account, and the plea failed to show how the defendant was injured or damaged by his written promise to pay what he in fact owed. "The defendant was under no duty to execute the note, but he was under a duty to pay the debt; and unless his written promise deprived him of some legal right, or in some way injured him, he has no right to complain. He does not allege how the giving of the note injured or damaged him. Admitting that the plaintiffs did make the promises set out in the plea, they constituted no fraud in any legal or equitable sense. A sufficient defense cannot be predicated upon fraud, unless such results in some injury. Both fraud and injury must exist, to invalidate a written contract. The principle of damnum absque injuria applies." Austell v. Rice, 5 Ga. 472; Strickland v. Parlin & Orendorf Co., 118 Ga. 213, 44 S. E. 997 (4). See, also, Hargrove v. Nix, 14 Ga. 316.

*

[Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 1524, 1525, 1558; Dec. Dig. 477.]

Error from City Court of Monticello; A. S. Thurman, Judge.

Action by W. P. Minter against Jesse McClendon. Judgment for plaintiff, and defendant brings error. Affirmed.

Greene F. Johnson, of Monticello, for plaintiff in error. Eugene M. Baynes, of Monticello, for defendant in error.

RUSSELL, C. J. Judgment affirmed.

(18 Ga. App. 182) CULPEPPER v. CULPEPPER. (No. 6673.) (Court of Appeals of Georgia. May 30, 1916.)

(Syllabus by the Court.)

1. GIFTS15, 47(2), 49(3)-INTER VIVOS.

To constitute a valid gift, there must be the intention to give by the donor, acceptance or some act accepted by the law in lieu thereof. by the donee, and delivery of the article given, Civil Code 1910, § 4144. The intention to give must be expressed. Acceptance by the donee (being generally presumed) may be implied; and, though delivery must be proved, it may be proved by circumstantial as well as by direct

Smith & Russell and C. L. Redman, all of evidence. Jackson, for plaintiff in error.

RUSSELL, C. J. Judgment affirmed.

(18 Ga. App. 217)

MCCLENDON v. MINTER. (No. 7166.) (Court of Appeals of Georgia. May 31, 1916.)

(Syllabus by the Court.)

BILLS AND NOTES 477-ACTIONS-DEFENSE. A plea setting up the defense that a promissory note, given as evidence of a pre-existing debt (the justness of which was not denied), was void, because, as alleged, the defendant would not have executed the note, but for a promise on the part of the payee to "run him" the next year, was properly stricken, since there was no allegation that the defendant was injured or damaged by the written promise to pay his

[Ed. Note.-For other cases, see Gifts, Cent. Dig. §§ 14, 84, 97; Dec. Dig. 15, 47(2), 49(3).

For other definitions, see Words and Phrases, First and Second Series, Gift.]

2. GIFTS 49(5)-INTER VIVOS-EVIDENCEWEIGHT AND SUFFICIENCY.

According to the evidence for the plaintiff, R., her uncle by marriage, in the presence of his wife, who was the plaintiff's aunt, expressed an intention to give to the plaintiff certain money, which apparently he had obtained by his marriage. A few weeks thereafter R.'s wife died, the plaintiff soon received by mail a negotiable time certificate of deposit for $250, which had been issued by a bank to R. and was payable to his order, and some months later R. died. In this suit the plaintiff sought to establish her claim of ownership of the certificate of deposit. There was evidence for the defendant that after the time at which, according to the plaintiff's testimony, she received the certificate

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes