CRIMINAL LAW (§ 942*)-NEW TRIAL-INPEACHING EVIDENCE.

ed by the jury: (1) Whether it was negligence | witness on a matter wholly immaterial and irupon the part of the municipality to leave the relevant to the issue was not erroneous. excavation upon its street unprotected by guard [Ed. Note.-For other cases, see Witnesses, rails or other device; and (2) whether this Dec. Dig. § 3312.*] negligence (if the jury found that the excava-3. tion was such as required protection) was a concurrent cause of the injury. Both of these questions were fairly submitted by the trial judge to the jury. While, in our opinion, the evidence strongly preponderates in favor of a finding for the plaintiff, still we cannot adjudge that the testimony demanded a finding that the plaintiff's injury would not have resulted if the city had not been negligent, nor can we hold, as a matter of law, that the act of the city in leaving the excavation unguarded was negligence.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3938-3943; Dec. Dig. § 1003.*]

2. MUNICIPAL CORPORATIONS (8 821*)-QUESTION FOR JURY.

No act can be affirmed to be negligence, as a matter of law, unless it has been made so by statute; and nothing ruled in the former decision of this case can properly be construed as a holding that the act of the municipality in leaving the excavation unguarded was, as a matter of law, negligence. For this reason the court did not err in the instructions of which complaint is made in the various grounds of the motion for a new trial, nor in qualifying the request for instructions, so as to leave it to the jury to say whether the failure of the municipality to place guards or barriers around the excavation in question was negligence, when considered in connection with the facts and circumstances of the particular case.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. & 1745-1757; Dec. Dig. 821.*]

Error from City Court of Savannah; Davis Freeman, Judge.

The alleged newly discovered evidence being purely impeaching in character, there was no abuse of discretion in the refusal to grant a new trial on that ground.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2316, 2331, 2332; Dec. Dig. § 942.*] 4. REVIEW ON APPEAL.

No error of law appears, and the evidence clearly supports the verdict.

Error from City Court of Sandersville; E. W. Jordan, Judge.

R. A. Jenkins was convicted of crime, and brings error. Affirmed.

A. R. Wright and Gross & Swint, both of Sandersville, for plaintiff in error. J. E. Hyman, Sol., of Sandersville, for the State.

(Syllabus by the Court.) 1. MASTEr and Servant (§ 67*)—Labor ConTRACT-PROSECUTION-EVIDENCE.

To authorize a conviction under the act of 1903 (Acts 1903, p. 90), the evidence must show a contract of service, distinct and definite as to all essential terms, such as the time when the contract is to commence and terminate, the amount of wages to be paid, how the laborer is to work, whether by the day, week, month, or year, where he is to work, and the kind and character of the work to be performed. StarAf-ling v. State, 5 Ga. App. 171, 62 S. E 993; Mosely v. State, 2 Ga. App. 189, 58 S. E. 298; Glenn v. State, 123 Ga. 585, 51 S. E 605. McCoy v. State, 124 Ga. 218, 52 S. E. 434 Presley v. State, 124 Ga. 446, 52 S. E. 750; 78 S. E. 853. Thorn v. State, 12 Ga. App.

Action by Mrs. J. H. Barrett, Jr., against the Mayor, etc., of Savannah. Judgment for defendant, and plaintiff brings error. firmed.

Twiggs & Gazan, of Savannah, for plaintiff in error. H. E. Wilson and David C. Barrow, both of Savannah, for defendant in

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 75; Dec. Dig. § 67.*] 2. MASTER ANd Servant (§ 67*)—Labor CONTRACT-PRESUMPTION.

A verbal contract alleged to have been made in March, 1912, by which the laborer agreed to work for the prosecutor from January 1, 1913, to July 1, 1913, at $20 per month," is too indefinite as to some of the essential terms, such as the place where the work was to be done and the kind and character of the work to be performed, to be the basis of a prosecution for cheating and swindling under the abovementioned act.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 75; Dec. Dig. § 67.*] Error from City Court of Jackson; H. M. Fletcher, Judge.

Ed Sheffield was convicted of violating the labor contract law, and brings error. Re

versed.

J. T. Moore, of Jackson, for plaintiff in error. C. L. Redman, Sol., of Jackson, for the State.

HILL, C. J. Judgment reversed.

(a) Where a timely demand is made by special demurrer, one indicted for simple larceny is entitled to have such a definite and particular description of property alleged to have been stolen as will enable him to know the exact transaction in which it is claimed he violated the law; but a description of the property as "one metal church bell" belonging to a named MAYOR, ETC., OF CEDARTOWN v. VANN. church is sufficiently definite to withstand a special demurrer which does not itself specify in what respect the description should be more (Court of Appeals of Georgia, July 15, 1913.) minute.

In the absence of direction by a debtor to apply a payment made by him to one of two demands which his creditor holds against him, the creditor can apply the payment to either one of the demands, where no rights of third parties will be affected, even though the payment be derived from the proceeds of property upon which the creditor has a special lien as to one of the debts. This principle applies to the payment by the tenant to the landlord, where the latter receives no direction from the tenant to apply such payment to the rent, but the tenant leaves it optional with the landlord either to apply the payment to the rent due or to another unsecured indebtedness which the landlord holds against the tenant. Bufford v. Wilkerson, 7 Ga. App. 443, 67 S. E. 114; Civil Code 1910, § 4316.

[Ed. Note. For other cases, see Payment, Cent. Dig. §§ 104-114; Dec. Dig. § 39;* Landlord and Tenant, Cent. Dig. §§ 857, 858.]

tentions of one of the parties affords no ground | (after correctly telling them that the quesfor an assignment of error complaining that tion being tried was whether the note was this omission withdrew the consideration of

Error from City Court of Valdosta; J. the verdict would be in favor of the defendG. Cranford, Judge.

[2] The assignment of error and the amended grounds of the motion for new trial all complain of the omission of the judge to call special attention to certainly submitted to them every circumstance circumstances in the evidence, and especial- which might illustrate what Moore would ly that the court excluded from the consid- have done, or did, under the circumstances. eration of the jury evidence in his favor and What any one else might have done was enthe argument of his counsel, which tended tirely immaterial, because the same influto stress the fact that it was improbable and ences might not have operated in like manunlikely that a man of the defendant's stand-ner upon another individual. There was no ing would have given such a hide-bound in- error in refusing a new trial.

any one else would have done, in the premises, but that the real question was whether | ATKINSON et al. v. TAYLOR. (No. 4,442.) the defendant signed the note, he virtually (Court of Appeals of Georgia. July 15, 1913.) prevented the jury from considering the reasonableness or unreasonableness of the

testimony in behalf of the plaintiff, and 1. thereby prejudiced the cause of the defendant. A case can be imagined in which an instruction on the part of the trial judge might have had this effect; but in the present case the judge specifically told the jury

Railway Co. v. Wright, 6 Ga. App. 172, 64 S. | Nor was it error for the court to charge, in E. 703; Murphy v. Meacham, 1 Ga. App. 155, 57 S. É. 1046; Merchants' & Miners' Transportation Co. v. Corcoran, 4 Ga. App. 654, 62 S. E. 130.

connection therewith, "The facts and circumstances, if you believe they existed in this case, that would demand and require any assistance of the conductor are to be determined [Ed. Note.-For other cases, see Appeal and by you," although the plaintiff's petition did Error, Cent. Dig. §§ 3944-3947; Dec. Dig. not charge that any assistance was demanded 1004.*] or required of the conductor.

[Ed. Note.-For other cases, see Trial, Cent. Dig. 88 505, 596-612; Dec. Dig. 252.*] 6. INSTRUCTIONS.

"Inasmuch as enforced idleness or diminished efficiency in offices of labor is calculated The evidence authorized the reference to give rise to mental distress, it is not error which the court made to the subject of permato describe the thing by its effects, and call it nent injuries, and the instruction upon that pain and suffering. Such deprivation or im- subject, of which complaint is made, was appairment can be classed as "pain and suffer-propriate and free from error. ing," and the jury may properly be instructed that the law fixes no other measure than the enlightened conscience of impartial jurors. Powell v. Railroad Co., 77 Ga. 200, 3 S. E. 757; Atlanta Street Railway Co. v. Jacobs, 88 Ga. 647, 652, 15 S. E. 825; Metropolitan Street Railway Co. v. Johnson, 90 Ga. 508, 16 S. E. 49; Southern Railway Co. v. Hutchenson, 136 Ga. 591(1), 71 S. Ě. 802.

[Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 255-259; Dec. Dig. § 102.*] 3. DAMAGES (§ 216*) - PERSONAL INJURIES MENTAL SUFFERING.

Though the allegation upon that subject might have been subject to special demurrer, mental pain and suffering was charged in the petition as an element of damage; and for this reason, as well as because the allegations of the petition were supported by evidence, it was not error for the court to charge the jury that "the physical injury which incapacitates a man or woman from labor is classified in law with actual mental pain and suffering, such pain and suffering as is charged in the petition."

[Ed. Note. For other cases, see Damages, Cent. Dig. §§ 54S-555; Dec. Dig. § 216.*] 4. DAMAGES (§ 216*) - PERSONAL INJURIES INSTRUCTIONS.

The use of the word "accident" in an instruction, in which the jury were told that "if inability to labor is the result of an accident or injury, and is the result of the accident or injury charged in the petition, if there is evidence to sustain that, you will take that into consideration with other evidence in determining what the plaintiff in this case should recover for the injury which she claims was sustained," was entirely harmless, since the meaning of the word "accident" was qualified, if not entirely eliminated, by the immediate use of the words "or injury" as explanatory thereof, and could not have misled the jury; for all right of recovery was expressly confined, in the latter part of the instruction, to the injury alleged by the plaintiff.

[Ed. Note. For other cases, see Damages, Cent. Dig. §§ 548-555; Dec. Dig. § 216.*] 5. TRIAL (8 252*)-INSTRUCTIONS-EVIDENCE TO SUPPORT-PHYSICAL CONDITION.

The jury saw the plaintiff, and there was evidence that at the time of the alleged injury her appearance would plainly indicate to any observer her extremely weak and delicate physical condition. It was therefore not error for the court to instruct the jury that when a person is physically incapable of helping herself on a train, and that fact is known to the conductor, then, under the relationship existing between the carrier and passenger, it would be the duty of the conductor to render such assistance as the circumstances might necessitate.

Error from City Court of Tifton; R. Eve, Judge.

Action by S. A. Taylor against H. M. Atkinson and others, receivers. Judgment for plaintiff, and defendants bring error. Affirmed.

J. H. Merrill, of Thomasville, and Fulwood & Skeen, of Tifton, for plaintiffs in error. J. S. Ridgdill and C. C. Hall, both of Tifton, for defendant in error.

RUSSELL, J. Judgment affirmed.

(13 Ga. App. 102)

YEARGIN v. DYE. (No. 4,862.) (Court of Appeals of Georgia. July 15, 1913.) (Syllabus by the Court.) GUARANTY (8 49*) - DISCHARGE OF GUARAN

TOR.

Where one agrees to pay the debt of another, and receives for his promise a valuable consideration, he is not released merely because, upon his failure to pay, the creditor, without a return of the consideration, agrees to look to the original, instead of the substituted, debtor for payment. The statements made by the creditor in the present case did not amount to an agreement to release the substituted debtor, and were admissible in evidence only for the purpose of illustrating whether there had been an agreement by the defendant to pay the plaintiff the debt due him by a third person.

There was no error in the instruction on this subject of which complaint is made in the motion for a new trial. The defendant in effect admitted a promise to pay what the original debtor owed, and contended merely that he and the plaintiff had been unable to agree on the amount. The evidence fully authorized the verdict.

[Ed. Note.-For other cases, see Guaranty, Cent. Dig. § 60; Dec. Dig. § 49.*]

Error from City Court of Elberton; Geo. C. Grogan, Judge.

Action by Albert Dye against W. H. YearJudgment for plaintiff, and defendant brings error. Affirmed.

gin.

Worley & Nall, of Elberton, for plaintiff in error. Ward & Payne, of Elberton, for defendant in error.

POTTLE, J. Judgment affirmed.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

(13 Ga. App. 63)

same as if no sale to the husband had been HODGES. GILLESPIE, SHIELDS & CO. contemplated. In such a case the debt is

(No. 4,858.)

hers, not his. See Boland v. Klink, 63 Ga.

(Court of Appeals of Georgia. July 8, 1913.) 448; Hull v. Sullivan, 63 Ga. 127; McDonald

v. Bluthenthal & Bickart, 117 Ga. 120, 43 S. E. 422. The facts of this case, however, do not bring it within the principle of those decisions. There is nothing to show that any sale was made to the wife. Nor were there any negotiations between the wife and the creditors looking to a sale to her. On the contrary, the evidence demanded a finding that the sale was made to the husband. The goods were shipped to him and disposed of

Error from City Court of Jefferson; J. A. by him, and the wife received no part of Johns, Judge.

Action by Gillespie, Shields & Co. against Olivia Hodges. Judgment for plaintiff, and defendant, Olivia Hodges, brings error. Reversed.

Geo. C. Thomas, of Athens, for plaintiff in error. Lewis C. Russell, of Winder, for defendant in error.

the consideration. It is true she might have constituted her husband her agent to purchase the goods and sell them for her, and she might have signed the notes jointly with him as a maker, and the obligation would have been binding upon her, but there is nothing in the evidence to show that she did

this.

Both the husband and the wife testified positively that the wife signed the notes POTTLE, J. Suit was brought against a solely as security for the husband, and the husband and wife on two promissory notes only evidence to impeach the truth of this signed by them apparently as joint makers. testimony is the bare fact that the creditors The wife pleaded that she signed the notes would not ship the goods until it received as surety for her husband. It appeared from the notes signed jointly by the husband and the evidence that the husband was a mer- the wife. This testimony in behalf of the chant and that the notes were given for the plaintiffs is not inconsistent with the testipurchase price of certain merchandise which mony for the wife that she was merely a had been shipped to him. The evidence security for her husband. Doubtless the shows that the wife had no interest in the plaintiffs thought that her relation to the business and received no part of the consid- paper was that of a joint maker; but when eration for which the notes were given; the they shipped the goods to the husband, withgoods having been shipped directly to the out making any contract with the wife and husband and disposed of in a stock of mer- without ascertaining what her true relations chandise owned by him. The husband and to the paper was, they took the risk of her the wife both testified that the notes were showing, as she has done, that her real relasigned by the wife as security at the request tion to the paper was that of a surety for of the husband. One of the agents of the her husband; that she did not contract to plaintiffs. testified that he did not ship the buy the goods, either directly or through goods to the husband until the notes were re- her husband as agent; that she received no ceived, and that he requested that both the part of the consideration; and that she husband and the wife sign the notes before signed the notes merely for the accommodathe goods would be shipped. Several letters tion of her husband. There is nothing in any and telegrams containing correspondence be- of the correspondence to indicate that the tween the husband and the plaintiffs were in-husband was acting as agent for his wife. troduced in evidence. In these it appears The case is simply one where the creditors that the husband promised to forward the dealt exclusively with the husband and denotes, and the plaintiffs wrote to the hus-clined to extend him credit until the wife band that the goods would be shipped as signed the evidence of the indebtedness with soon as the notes were received, signed joint- him. They knew that she was a married ly by the husband and the wife. woman, knew that she had no power to bind her estate by a contract of suretyship, and knowing these things they took the risk. The evidence demanded a verdict in the wife's favor, and a contrary finding should have been set aside on her motion for a new trial.

Several decisions are cited by counsel for the plaintiffs to the effect that where a sale has been agreed upon with a husband and he cannot give security, and thereafter his wife becomes the purchaser of the goods, either directly or through her husband as agent, and gives the required security, it is the

Judgment reversed.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes