F. M. Scarlett, Jr., Sol., of Brunswick, for the State.

BROYLES, C. J. [1] 1. Before exceptions pendente lite can be considered by this court, error must have been originally assigned in the main bill of exceptions upon the exceptions pendente lite, and not merely upon the

judgment complained of in the exceptions

pendente lite, or such an assignment must be made, by the permission of this court, before the argument of the case here. Jones v. Ragan, 136 Ga. 653, 71 S. E. 1098; Sovereign

Camp of Woodmen of the World v. Warner, 25 Ga. App. 449, 103 S. E. 861; Carhart v. Mackle, 25 Ga. App., 103 S. E. 855. An inspection of the original records of those cases (of file in the office of the clerk of the reviewing court) discloses that in the main bill of exceptions in each case error was assigned upon the judgment complained of in the exceptions pendente lite, and not upon the exceptions pendente lite themselves. Under this ruling, the exceptions pendente lite cannot be considered.

[2] 2. The motion for a new trial is based upon the general grounds only, and the verdict was amply authorized by the evidence.

(Court of Appeals of Georgia, Division No. 1. It follows that the court did not err in overNov. 9, 1920. Rehearing Denied

Dec. 15, 1920.)

(Syllabus by Editorial Staff.)

1. Criminal law 1129(6)—Exceptions pendente lite not considered, when bill did not assign error thereon, but on judgment com. plained of.

Exceptions pendente lite could not be considered, where in the main bill of exceptions error was assigned on the judgment complained of in the exceptions pendente lite, and not on such exceptions themselves.

ruling the motion for a new trial.
Judgment affirmed.

LUKE and BLOODWORTH, JJ., concur.

On Motion for Rehearing.

BROYLES, C. J. Counsel for the plaintiff in error, in their motion for a rehearing of the case, complain that this court, in passing upon the grounds of the motion for a new trial, considered only the ground that alleged "the verdict is contrary to evidence and with

2. Criminal law 935(1)—New trial on gen-out evidence to support it." Counsel for the eral grounds properly denied, when verdict supported by evidence.

A motion for a new trial, based on the general grounds only, was properly overruled, where the verdict was amply authorized by the evidence.

On Motion for Rehearing.

3. Criminal law 1129(1)-Demurrer not reviewable on exceptions pendente lite not assigned in bill.

plaintiff in error having argued in their brief only that ground of the motion for a new trial, the other grounds were treated as abandoned.

[3] The question as to whether the Eighteenth Amendment to the Constitution of the United States, and the National Prohibition Act, generally known as the Volstead Act, supersede or abrogate the existing prohibition laws of the state, was attempted to be raised only by the demurrer to the accusation, and, under the ruling in paragraph 1

A question as to whether the statute under which defendant was prosecuted had been of the decision in this case, could not be superseded or abrogated could not be considered, where it was raised only by demurrer to considered by this court, since it was brought the accusation, which was brought up by excep-up by exceptions pendente lite upon which no tions pendente lite on which no assignment of error was made in the main bill of exceptions.

assignment of error was made in the main bill of exceptions. However, the Supreme Court has recently passed upon the merits Error from City Court of Brunswick; Eus- of this identical question adversely to the tace C. Butts, Judge. contentions of the plaintiff in error. See 104 S. E. 771,

G. F. Ponder was convicted of an offense, Jones v. Hicks, 150 Ga. and he brings error. Affirmed.

Bolling Whitfield and A. H. Crovatt, both of Brunswick, for plaintiff in error.

decided Nov. 11, 1920.

Rehearing denied.

LUKE and BLOODWORTH, JJ., concur.

(180 N. C. 612)

(105 S.E.)

tained. There was evidence tending to show BUTNER V. BROWN BROS. LUMBER CO. that in March, 1918, plaintiff, a bright boy

(No. 508.)

1920.)

then about 12 years of age, had his arm

(Supreme Court of North Carolina. Dec. 24, caught in the cogwheels of an edging machine in the lumber mill of the defendant compány and had it crushed so that it had to be amputated; that this machine was in the shape of a long table on which there was a carriage

1. Master and servant 302 (1) Laborer without authority to invite child into mill. One who was employed as a common labor-propelled by a gearing of cogwheels at the er to attend a machine in a mill has no implied authority on behalf of his master to invite into the mill a child who wanted to get some of the strips of wood cut off at the machine, where it was contrary to the mill rules for children to be permitted within the mill. 2. Negligence 48-Mill owner held without knowledge of children's presence.

Evidence that on other occasions children had been permitted to play in a sawmill and had been allowed to enter the mill to get strips of wood does not charge the owner with liability for injuries to a child permitted, in violation of rules, to go into the mill and near a dangerous machine to get some strips of wood. 3. Negligence 51-Mill owner not required to case cogs to protect child in mill without authority.

Even if cogs on a machine were not sufficiently guarded for the protection of the mill employees or of others lawfully within the mill, the employer owes no duty to guard them for the protection of a child who entered the mill in violation of the employer's orders. Clark, C. J., dissenting.

side of the table, and on this carriage the lumber was moved forward through the machine, cutting off the edges as the term imports; the foreman usually stands at the front feeding the machine or guiding the lumber as it goes through, and at the other end another man or boy with the duty of tailing the edger, and when the lumber has passed through it goes on to the trimmer table about 20 feet beyond, and the edgings are thrown into the hog or off to the side of the machine so as to keep the same clear, etc.; that the machine in question was a standard machine in good order, and the cogwheels which moved the carriage were covered by metallic hoods going two-thirds of the way down in the usual manner of such coverings and affording ample protection to any employee engaged in operating the machine or working about it, and the only way to get caught, as stated by several witnesses, was to "come up under it." There was also full testimony on the part of the defendant that by the rules of the company and its managers children were forbidden to come

Appeal from Superior Court, Yancey Coun- within the mill, notices to that effect being ty; Harding, Judge.

placed generally about in the mill in places Action by Earl Butner, by his next friend, likely to give warning, and they were never L. B. Butner, against the Brown Bros. Lum- allowed in the mill except when they slipped ber Company for personal injuries. Judg-in; that on the occasion in question, Corliss ment for plaintiff, and defendant appeals. Reversed, and cause dismissed as on motion

of nonsuit.

Rishell being the edger or foreman in charge of the machine, and Joe Rishell, an ordinary laborer about 16 or 17 years of age, acting as tailer, the plaintiff was sent by his father The action is to recover damages for physi- to the mill to get some of the edging for the cal injuries caused by alleged negligence of purpose of doing repairing about his lot, and defendant company in not properly safe-which were to be obtained on the outside of guarding its machinery and in permitting plaintiff, a child 12 years of age, or little over, to go about same, whereby he was caught in the cogs of certain portions of the machinery and received painful and permanent injuries, to plaintiff's great damage. There was denial of liability by defendant, and on issues submitted the jury rendered a verdict for plaintiff, assessing his damages. Judgment on verdict, and defendant company excepted and appealed.

Watson, Hudgins, Watson & Fouts, of Burnsville, for appellant.

Charles Hutchins, of Burnsville, and A. Hall Johnston, of Asheville, for appellee.

HOKE, J. On careful consideration, we are of opinion that no liability has been established against defendant company, and the motion for nonsuit should have been sus

the mill, where they were usually placed when sold or given away, and both father and son testified that the father had instructed the plaintiff on no account to go in the mill for the edgings. And, speaking to the fact of plaintiff being in the mill and about the machine at the time, Corliss Rishell, the foreman as stated, but now in the employment of others in the state of Pennsylvania, testified as follows:

"In March or April, 1918, this boy, Earl Butner, came to Brown Bros.' saw mill at Eskota, where I was working. He came after some edgings. I told him particularly and emphatically not to come in the mill while it was being operated. There was no room for him there. He was in my way. I told this boy, plainly and emphatically, and he knew what I said and understood me, that he was not allowed on the mill, and should not be there

while the mill was running. He obeyed my orders at first for a period of about 10 minutes. Then when I was away from my regular place for a few minutes, he came back in and went in under a string of live rolls and got his arm hurt. The first thing I knew of this was that I heard him holler. I thought at

first that his coat was caught, and I went over to see if I could help him out. We then discovered the accident and had him relieved as quick as possible. The boy could not possibly have gotten injured in the cog gears if he had been standing up. These cog gears were protected by metal coverings. The boy got down under them in violation of the instructions that I had given him."

who had a definite task given him to do-that is, to keep the machines clear of lumber passing through and the edgings that were cut from it. So far as appears, he had no authority to invite any one into the mill contrary to the rules of the company, nor did he have any right to dispose of these edgings to outsiders, and in such case our decisions are to the effect that liability may not be imputed to the owners and proprietors by reason of his speech or conduct on this occasion; the same being entirely outside of the course and scope of his employment. In Dover, Adm'r, v. Mayes, 157 N. C. 324, 72 S. E. 1067, 46 L. R. A. (N. S.) 199, a lad 10 years of age was invitThis testimony, however, was denied by the ed or permitted by the driver of a team, an plaintiff, who, after saying that his father employee, to ride with him. In a runaway the had told him not to go in the mill, testified boy was killed, and recovery against the ownthat he went in on the invitation of Joe Rish-er of the team was denied. The decision ell, the tailer, the circumstances more direct- being as follows: ly relevant being given in his own language as follows:

"The day I lost my arm I went in to get some strips at the edger machine where Joe Rishell was working. He was between 16 and 17 years old. I was going down the road, and Joe Rishell came to the door of the mill and motioned for me to come up, and I could not hear what he said for the mill was going. He told me to go in and get the strips out, that he was busy and could not help me turn, but would help after a while if he got time, and I went in there. The way I went the edger was 50 feet from the door. I know where the edger machine was, for I had been in there before. I do not know that I had ever seen Joe Rishell at the edger machine before, but I had seen other men there. The edger was running, and to get the strips I had to go in between the roller bed and the hog. Joe Rishell told me to go in there and get them, and I went in there and threw out 8 or 10 strips and went to pull out another one, and it hung, and I jerked at it, and my arm came back and caught in the cogs and ground it off."

From this, the testimony chiefly relevant and controlling, as we view the case, it appears that the machine, a standard one, was in good shape, that the cogwheels were covered two-thirds of the way down the usual way, and affording protection to the employees called on to operate or work about it, in the course of their employment; that the plaintiff at the time was in the mill against the will of the owners or of any employee who had authority or duties giving him a position of any significance, and certainly without their knowledge or consent, the boy himself testifying that he did not see any of the owners or Corliss Rishell, the foreman, that morning; and under such conditions, if

responsibility for the injury can be fixed upon the defendant at all, it must be by reason of the invitation or direction of Joe Rishell, the laborer, for the plaintiff to come in and get the edgings for himself.

[1] Joe Rishell, as shown, was a lad 16 or 17 years old, an ordinary laborer in the mill,

"The master is not responsible for the negligent acts of the servant employed for the ordinary duty of driving a team of mules hitched to a wagon for the purpose of hauling lumber in causing an injury to one whom, in the absence of the master and without his knowledge, express or implied, he had permitted to ride on the wagon loaded with lumber; for such acts are beyond the scope of the servant's emduties owed by the servant to the master." ployment, and not done in furtherance of the

A similar application of the principle had been previously made in Marlowe v. Bland, 154 N. C. 140, 69 S. E. 752, 47 L. R. A. (N. S.) 1116, where the proprietor directed a hired man to cut and pile the cornstalks in a field on his farm, and, having given this specific direction, went off with a load of lumber. The employee, having cut and piled the stalks as directed, concluded he would burn them, and, the wind rising, the sparks were carried to a nearby woods of another owner, setting the same on fire and doing considerable damage. Here, too, the liability on the part of the employer was denied, the court in the opinion saying in part:

hired man is to do what he is told, and in "As a general proposition, the duty of a this instance he was directed to do a definite, specific thing, importing no menace to any one, and, after completing the work that was given him to do, he goes on of his own motion and does something else-engages in an act which is not infrequently a source of danger to neighbors, and does it under circumstances amounting to a negligent wrong and causing substantial pecuniary injury."

And the decision denying recovery was stated as follows:

servant, a 'hired man,' to cut and pile corn"When the master has given direction to his stalks in his field, which was done by the servmaster, and in his absence, he set fire to the ant, and then, without direction from the stalks, which caused sparks to be carried by the wind, which set fire to and destroyed plaintiff's property, the doctrine of respondeat su

(105 S.E.)

perior does not apply, the thing the master a motion for nonsuit the court should con-
ordered his servant to do being harmless in
itself, and there being no express or implied
authority given the servant to burn the stalks,
which alone caused the damages complained
of."

strips; that the strips were lying beside the machine, and as he stooped down to pick them up his sleeve was caught in the cogs and his arm being drawn in, was ground off above the elbow; that they had to stop the machine and take it apart to get him out; that he was sent to the hospital, where his arm was amputated near the shoulder. He also testified that he had been in the habit of playing in the mill for a long time, and that he had been going there a long time to get strips; that nobody had ordered him out of the mill; that he and the other children were allowed to play there, and liked to do so; and that no one had ever warned him of any danger being incident to the machinery there operated.

The cogwheel in which the plaintiff's arm was caught was a bevel gearing about six inches in diameter, and the president of the defendant testified that the covering came down halfway on the side.

on the part of the plaintiff, taking, as we must, the evidence for the plaintiff to be true, and the jury found it to be true.

Besides the above, which was sufficient, it was the grossest negligence for the defendant to case only the upper half of a six-inch bevel gearing, revolving rapidly, leaving the lower half of this dangerous instrumentality entirely uncovered. The draft made by the saw or between the door and the window or by some other cause would readily and naturally drive some of the little child's clothing into this rapidly revolving and unprotected gearing.

The negligence of the defendant is further enhanced by the fact that not only the children of its employees in the adjacent houses were allowed to play in the mill, but, in open defiance of law, the defendant employed some of these very children, including the plaintiff, to work therein when under the age prescribed by law.

There was a conflict of testimony as to It is difficult to see how the trial judge who was running the edger that day. The could have directed a nonsuit on this evidefendant introduced the deposition of Cor- dence, which shows habitual and continued liss Rishell that he was running the edger, negligence of the defendant and the absence and, instead of letting the plaintiff in, he of any negligence on the part of the plaintiff. told him to stay out. But the plaintiff and If the defendant had evidence which could his father testified that Joe Rishell was run-overthrow the above testimony for the plainning the edger, and Joe does not testify to the contrary, but this is immaterial, for under this motion the testimony for the plaintiff must be taken as true that Joe Rishell was running the edger, and that he told the 11 year old child to come in and get the strips, and (as the plaintiff testifies) that he and the other boys were accustomed to play there; that he had not been warned of any danger, and had repeatedly gotten strips at that place; that he had never been ordered out of the mill; and that he and other children had been allowed to play there.

Whether the above evidence was true, or that of the defendant, which was only contradictory in part, was a matter which the plaintiff was entitled to have the jury decide, and the court on this motion for nonsuit was compelled to take as true and properly refused the motion for nonsuit. This case is very much similar to Ferrell v. Cotton Mill, 157 N. C. 528, 73 S. E. 142, 37 L. R. A. (N. S.) 64, where Judge Walker clearly stated the principle applicable to this case.

This little child of 11, with his fellows living immediately around the mill in the company's houses and playing in the mill for months without any objection, had been to the exact spot where the little plaintiff had lost his arm, he had not been warned of any danger, and when he was told by the edger to go there and get strips which the edger said he was too busy to get himself, since this would require the stopping of the machine, he was not even a technical trespasser. The entire conduct of the defendant was negligent, and there was no negligence whatever

tiff, the jury did not believe it, and it was not within the jurisdiction of the judge to do so. Very many cases are authority which forbade the judge to direct a nonsuit, among them Ainsley v. Lumber Co., 165 N. C. 122, 81 S. E. 4, and Starling v. Cotton Mills, 168 N. C. 230, 84 S. E. 388, L. R. A. 1915D, 850. This child, 11 years old at the time, must go through life with one arm gone. He gave his account how it happened. The jury said he told the truth; can we say the contrary?