(3) Said indebtedness arises by reason of the said defendant having recklessly run his Dodge roadster in such negligent and careless manner as to collide with plaintiff's Ford fivepassenger car on the Peacock public crossing, four miles south of Tennille, Ga., in said county. (4) As a result of said collison, plaintiff's car was badly damaged, which necessitated repairs at the garage of an expenditure of $250. (5) Plaintiff shows that at the time of said accident her car was moving at a speed of not more than 10 or 12 miles, and was traveling from Lindsey's railroad crossing toward Piney Mount Church, and as her car was in the act of crossing at the Peacock public road crossing where the Tennille and Wrightsville public road crosses the Bald's Ferry public road, and while plaintiff's car was traveling said Bald's Ferry road, the defendant came rushing from the direction of Wrightsville, and traveling on the Wrightsville and Tennille public road and in the direction of Tennille at a recklessly high rate of speed of not less than 40 miles an hour, and that the defendant continued across said public crossing at said high rate of speed, and did not blow any horn or give any other signal of his approach, and did not check his car as he approached said crossing. (6) Plaintiff further shows that, due entirely to the reckless and careless running of defendant's car by the defendant, the defendant's car collided with plaintiff's car, wrecking and damaging plaintiff's car to the extent of $250, as aforesaid. (7) Plaintiff shows that the running of defendant's car by the defendant at such a high rate of speed at said public crossing and without checking his car as he approached said crossing, and without giving any signal or alarm of his approach of said crossing, was the grossest kind of negligence and that said negligence of the defendant was entirely responsible for said accident, as plaintiff's car was driven carefully and with due diligence as required by law on said public crossing, and said accident was unavoidable in so far as the plaintiff is concerned, and was due entirely to wanton and negligent conduct of the defendant. Wherefore petitioner prays that she do recover for the damages which she has suffered by reason of the negligent acts of the defendant as aforesaid, and that process do issue, directed to the said defendant, requiring him to be and appear at the next term of this court to answer this complaint. After demurrer filed to the petition, but before hearing on the demurrer, plaintiff with leave of court amended the petition so as to set out in detail the damage to plaintiff's automobile. The demurrer to the petition was grounded: First, on no cause of action; second, special demurrer to paragraph 3 of the petition, alleging that, defendant having recklessly run his roadster, etc., on the ground of conclusion of the pleader; third, special demurrer to paragraph 4 of petition as not putting defendant on notice of what damages or what elements of damage are for which plaintiff sues; fourth, special demurrer to paragraph 6 of petition, because it is not alleged in what way defendant was reckless or careless in the running of his car, nor is it alleged how or in what respects plaintiff's car was damaged; fifth, special demurrer to paragraph 7 of petition as being only conclusions of the pleader.-Statement by editor. W. M. Goodwin, of Sandersville, for plaintiff in error. M. L. Gross, of Sandersville, for defendant in error. HILL, J. [1, 2] 1. Two automobiles collided at the intersection of public highways, the collision resulting in the partial demolition of both machines. The owner of one brought suit against the owner of the other for damages. The defendant replied by claiming damages to his car, caused by the driver of the plaintiff's car. In other words, each party to the suit contended that the other was negligent, and sought to recover damages. The negligence alleged against each party was that he was violating the state statute limiting the speed of automobiles when approaching the intersection of public highways, each insisting that such negligence of the other was the proximate cause of the damage. The jury found a verdict for the plaintiff, and the motion of defendant for a new trial was denied. Held, while both the plaintiff and the defendant may have been guilty of negligence per se in violating the statute regarding the running of automobiles at the intersection of public highways, it did not necessarily follow that plaintiff's negligence was the proximate cause of the injury, or that the plaintiff's negligence was as great as that of the defendant, or that the plaintiff, by the exercise of ordinary care, could have avoided the consequences of the defendant's negligence after it became apparent. These questions were exclusively for solution by the jury. Schofield v. Hatfield, 25 Ga. App. 513, 103 S. E. 732; L. & N. R. Co. v. Stafford, 146 Ga. 206, 209, 91 S. E. 29. A verdict supported by any evidence cannot be disturbed in the absence of any material error of law. [3-7] 2. The allegations of the petition set forth clearly and specifically a cause of action, and there was no error in the judgment overruling defendant's demurrers, either general or special. [8] 3. This court cannot say that there was no evidence to support the verdict for the plaintiff, approved by the trial court. Judgment affirmed. JENKINS, P. J., and STEPHENS, J., Con cur. L (105 S.E.) (26 Ga. App. 66) (No. 11746.) (26 Ga. App. 184) WALKER et al. v. STATE. (No. 11905.) (Court of Appeals of Georgia, Division No. 1. (Court of Appeals of Georgia, Division No. 1. Dec. 16, 1920. Rehearing Denied Jan. 27, 1921.) (Syllabus by Editorial Staff.) 1. Gaming 101-Evidence held to make question for jury. Jan. 25, 1921.) (Syllabus by Editorial Staff.) Criminal law 935(1)—New trial erroneously refused when evidence insufficient. Where the evidence did not authorize the On a trial for gaming evidence held suffi- verdict, it was error to overrule defendant's motion for a new trial. cient to make a question for the jury. 2. Criminal law 1160-Jury finding approved by trial judge not disturbed. Error from City Court of Zebulon; E. F. Dupree, Judge. When the evidence presented a question for the jury, its finding approved by the trial judge will not be disturbed by the Court of Appeals.er Error from City Court of Waycross; J. L. Crawley, Judge. Albert Roberts was convicted of gaming, and he brings error. Affirmed. Estes & Estes, of Waycross, for plaintiff in error. Benj. G. Parks, Sol., of Waycross, for the State. Criminal proceeding against George Walkand others. Judgment against defendants, and they bring error. Reversed. C. J. Lester, of Barnesville, for plaintiffs in error. LUKE, J. The evidence in this case did not authorize the verdict, and for this reason it was error to overrule the defendant's motion for a new trial. Judgment reversed. BROYLES, C. J., and BLOODWORTH, J., concur. (26 Ga. App. 204) GRINSTEAD v. CITY OF HAWKINSVILLE. (No. 11961.) Jan. 25, 1921.) (Syllabus by Editorial Staff.) Certiorari 69-On sustaining writ on ground that contrary verdict was demanded, remand for new trial held proper. LUKE, J. [1, 2] The accused was convicted of gaming, and moved for a new trial upon the usual general grounds only. There was evidence tending to show that a number of persons, were seen playing and betting for money at a game played with cards in one corner of a pool room; that the accused was there temporarily in charge of the room; (Court of Appeals of Georgia, Division No. 1. that the game was reported to certain arresting officers, who immediately raided the place, finding the accused "on his knees, in a bunch of about ten negroes, all of whom jumped up and tried to run" upon the appearance of the officers; that upon a piece of a bench, around which the accused and those with him had been found kneeling, there was also found a deck of playing cards and $1.05 in money; that upon being arrested the accused asked for and obtained permission to close up the room before being carried to prison; and that, upon then going to the rear door for the ostensible purpose of closing it, he leaped out and escaped, and about one month later was rearrested. The officers did not see any money or cards in the hands of any of the players. A witness for the accused testified that he (the witness) was taking part in the game, and that the accused was "ringing up balls on a pool table." Held, the evidence presented a question for the jury, and their finding, approved by the trial judge, will not be disturbed by this court. See Hall v. State, 12 Ga. App. 571, 77 S. E. 893. Appeal and error 302(3)—Ground of motion for new trial, not showing ground of exclusion of evidence, not considered. A ground of a motion for a new trial complaining of the exclusion of evidence cannot be considered, where it fails to show on what ground the evidence was excluded. 5. Appeal and error 499(4)-Refusal of charge not considered, when tender before jury's retirement does not appear. The refusal to give a requested charge cannot be considered on appeal, when it does not appear that the request was tendered to the court before the jury retired to consider the argued in the brief of counsel for the plain- [4. tiff in error is that the judgment of the mayor and council of the city of Hawkinsville is contrary to law and the evidence, and that the evidence demanded a verdict for the plaintiff in certiorari. The judge of the superior court sustained the certiorari and remanded the case for another trial, and the plaintiff in certiorari excepted to that part of the judgment which remands the case for another trial. This exception is without merit. In such a case, where the undisputed evidence demands a verdict in favor of the plaintiff in certiorari, the judge of the superior court should sustain the certiorari, but should not render a final judgment in his favor. "This is so for the reason that in such a case the error complained of is not 'an error in law which must finally govern the case,' and further because it could not be known with certainty that the evidence on another trial would be the same." Seaboard Air Line Ry. v. Blue, 120 Ga. 228, 47 S. E. 569; Cook v. City of Atlanta, 6 Ga. App. 356, 64 S. E. 1107. Under this ruling the judge of the superior court did not err in failing and refusing to render a final judgment in the case. Judgment affirmed. case. 6. Appeal and error 706(4) General grounds of motion for new trial not considered without brief of evidence. The general grounds of a motion for new trial, when dependent on a consideration of the evidence, will not be considered, when there is no proper brief of evidence in the record, and no bona fide effort was apparently made to prepare one. County; W. W. Sheppard, Judge. Action between Avery & Co. and A. E. Graham and others. After judgment, both parties bring error. Affirmed on the main LUKE and BLOODWORTH, JJ., concur. bill of exceptions, and cross-bill dismissed. (26 Ga. App. 161) AVERY & CO. v. GRAHAM et al. (Nos. 11337, 11338.) Don H. Clark, of Savannah, for plaintiff in error. Travis & Travis, of Savannah, for defendants in error. LUKE, J. [1, 2] 1. "A direct assignment of error upon a ruling made during the progress of a trial comes too late, if for the first time presented in a bill of exceptions sued (Court of Appeals of Georgia, Division No. 1. out more than 30 days after the adjournment Jan. 25, 1921.) of the term at which such ruling was made." Heery v. Burkhalter. 113 Ga. 1043, 39 S. E. made a ground of a motion for a new trial. 406 (1). Nor can such a ruling be properly Methodist Episcopal Church South v. Dudley Sash, Door & Lumber Co., 137 Ga. 68, 72 S. E. 480. Under these rulings the assignment of error, in the bill of exceptions and in the motion for a new trial, upon the overruling of the plaintiff's motion to strike the defendant's answer, cannot be considered. [3] 2. Under repeated rulings of this court and of the Supreme Court, a ground of a motion for a new trial will not be considered, when the ground is so incomplete that it re quires a reference to some other part of the record. Under this rule the third, fourth, fifth, sixth, seventh, ninth, tenth, eleventh, 3. Appeal and error 302(1)—Ground of motion for new trial, requiring reference to oth-twelfth, thirteenth, fourteenth, fifteenth, sixer parts of record, not considered. A ground of a motion for new trial will not be considered, when it is so incomplete as to require a reference to some other part of the record. teenth, seventeenth, and eighteenth, grounds of the amendment to the motion for a new trial cannot be considered. [4] 3. A ground of a motion for a new trial complaining of the exclusion of evidence (105 S.E.) cannot be considered, where it fails to show on what ground the evidence was excluded. Central of Georgia Railway Co. v. Jaques & Tinsley Co., 23 Ga. App. 396, 98 S. E. 357 (2). Under this ruling the nineteenth, twentieth, and twenty-first grounds of the amendment to the motion for a new trial raise no question for the consideration of this court. [5] 4. The assignment of error upon the refusal of the court to comply with a certain written request to charge cannot be considered, since it does not appear that the request was tendered to the court before the jury retired to consider the case. Seaboard Air Line Railway v. Barrow, 18 Ga. App. 261, 89 S. E. 383 (4). 5. There is no substantial merit in any of the remaining grounds of the amendment to the motion for a new trial. [6] 6. The assignment of error in the general grounds of the motion for a new trial are dependent upon a consideration of the evidence in the case, and will not be considered, as there is no proper brief of evidence in the record, and apparently no bona fide effort was made to prepare one. Newborn v. Weitzer, 15 Ga. App. 668, 84 S. E. 141, and citations. Judgment on main bill of exceptions affirmed; cross-bill dismissed. Bouhan & Herzog, of Savannah, for defendant in error. LUKE, J. [1, 2] 1. The right to open and conclude the argument to a jury is an important legal right, and, if it be improperly denied, its denial demands the grant of a new trial. In order for the defendant to obtain this legal right where a prima facie case for the plaintiff is admitted, it must be shown that the right was claimed before the testimony upon both sides had closed. See Jones v. Fourth National Bank, 20 Ga. App. 219, 92 S. E. 964 (1), and cases cited. In this case it was not error to deny to the plaintiff in error the right to the opening and concluding argument to the jury. 2. There is no error of law that requires a reversal of the judgment overruling the motion for a new trial. Judgment affirmed. BROYLES, C. J., and BLOODWORTH, J., concur. (26 Ga. App. 273) SORRELLS v. SOUTHERN STATES PORTLAND CEMENT CO. (No. 11923.) (Court of Appeals of Georgia, Division No. 1. Jan. 28, 1921.). (Syllabus by Editorial Staff., Costs 278-When, after nonsuit, suit recommenced without payment of costs or proper affidavit in forma pauperis, petition properly dismissed. Where plaintiff, after a nonsuit, recommenced his suit without paying the costs, as required by Civ. Code 1910, § 5625, and his affidavit in forma pauperis did not state that he was advised and believed he had good cause for recommencing the suit, as required by section 5626, the petition was properly dismissed on demurrer. Error from City Court of Polk County; W. J. Nunnally, Judge. 2. Trial 25(16)-Defendant not entitled to Action by W. B. Sorrells against the Southopen and close argument unless right demand-ern States Portland Cement Company. Judged before testimony closed. Where a prima facie case for plaintiff is admitted, defendant, in order to obtain the right to open and conclude the argument, must claim such right before the testimony on both sides has closed. Error from City Court of Savannah; John Rourke, Jr., Judge. Action by J. P: Murrin against B. T. Elmgren. Judgment for plaintiff, and defendant brings error. Affirmed. Robt. L. Colding and H. Mercer Jordan, both of Savannah, for plaintiff in error. ment dismissing the petition on demurrer, and plaintiff brings error. Affirmed. Max Meyerhardt, of Rome, for plaintiff in error. E. S. Ault, of Cedartown, for defendant in error. LUKE, J. The plaintiff, in recommencing his suit, which had been previously nonsuited, failed to comply either with section 5625 of the Civil Code (1910) as to payment of costs or with section 5626, his affidavit in forma pauperis failing to state that "he is advised and believes that he has good cause for re commencing his suit." It was not error for the court to dismiss the petition upon demur rer. Judgment affirmed. others from a repetition of a similar offense. If the defendant is guilty as disclosed by the evidence submitted by the state, he should be punished. One of the principal reasons recognized by the law as to the reason a man who commits an offense such as this man is charg BROYLES, C. J., and BLOODWORTH, J., ed with should be punished is to deter others (Syllabus by Editorial Staff.) 1. Criminal law 1064/2-Conditional approval of ground for new trial no approval. Where amended motion for a new trial is based on the argument of one of the state's counsel, and in connection therewith the judge states that the recital of facts contained in amendment are approved, except that defendant's counsel in his objection as set forth did not specify any particular remarks, but objected to the argument as a whole as being inflammatory and improper, the ground cannot on writ of error be deemed approved. 2. Criminal law 1064(6)-Ground of motion for new trial for improper argument must allege argument was not referable to evidence. Ground of amended motion for a new trial basing error on argument of counsel for state cannot be considered where motion fails to aver that comment was not referable to any evidence adduced on the trial. 3. Criminal law 723 (2)-Argument of counsel as to enormity of offense and that prosecutor did right not to shoot accused, but prosecute him, held not error. In prosecution for assaulting a woman, argument of state's counsel that it was the most awful offense he had ever heard of, and commending prosecutor for bringing prosecution rather than shooting accused, as a husband might do, held not erroneous as inflammatory, as argument would be regarded as a deduction from the evidence. 4. Criminal law 1160 Approved verdict sustained by some evidence conclusive. Where a conviction is sustained by some evidence, and the verdict has approval of trial judge, court on writ of error will not interfere. from doing the same thing, and if he is guilty I want him punished severely so that the home of the citizens of this state will be protected, so that my wife, your wife, and the wife of every citizen of Georgia will be protected. If you believe that this defendant is guilty, so find, and by your verdict say to others who might be disposed to do a thing of this sort that you will meet with proper punishment at the hands of the court of Georgia. "A man may be guilty in the state of Georgia of assault and battery when he strikes another in anger. The law also says to touch a virtuous woman in the way of illicit love is a far greater outrage than to touch her in anger. "Gentlemen, a man who commits a crime such as is contended by the state this defendant committed, the violence on his part issues from the passion which, unrestrained, culminates in rape. "You have heard me read to the court in your hearing the law as it is written in the case of Goodrum v. State of Georgia, in which the principles I have discussed are laid down. I say that the prosecutor in this case, who is the husband of the woman who is claimed by the state was assaulted by the defendant, is to be highly commended in the course he has pursued. When a man commits an offense of the kind that is charged against this defendant, and the it is nothing but natural to suppose that the woman who is assaulted is a married woman, husband of that woman feels like taking a gun and killing a man who is guilty of such conduct. The chances are that, if it had been my wife or your wife, we would have felt like doing something of that kind, but, gentlemen, the law does not permit a thing of this sort, and the law makes it the duty of the husband to present the matter to the courts and there let whatever appertains to justice be done. The prosecutor has done this. He has preferred in this court a charge against this man, and has left it up to the jury of Troup county to decide whether or not this defendant is guilty of a violation of the law. I say that the prosecutor is to be commended in his action of the matter." In connection with such ground the trial judge made the following statement: "The recitals of fact contained in the fore Error from City Court of La Grange; going amendment to the new trial in said case Duke Davis, Judge. are hereby approved as true and correct, except that defendant's counsel in his objection Charlie Jabaley was convicted of an of- above set forth, did not at any time during the fense, and he brings error. Affirmed. The amended motion for a new trial based error on the following argument of one of the state's counsel: "It is one of the most awful offenses I have ever seen since I have been practicing law." "One of the objects of the enforcement of the criminal law is to deter the defendant and trial specify any particular remark of state's counsel or call the court's attention to any objectionable remark of state's counsel, but objected to the argument of state's counsel in whole as being inflammatory and improper, and was made after state's counsel had concluded, and at no time called the court's attention to the particular remarks excepted to." -Statement by editor. |