(26 Ga. App. 151) HINES, Director General, v. MIZELL. (No. 11782.) fully informed the defendant of the plaintiff's demands. While there was some slight ambiguity in the pleadings, the cause of ac (Court of Appeals of Georgia, Division No. 2. tion attached to the summons showed that it Jan. 20, 1921.) (Syllabus by Editorial Staff.) 1. Justices of the peace 91 (2) - Cause of action attached to summons held to state good cause of action ex contractu. was an action ex contractu, and not ex delicto. [2-4] 2. While the question of the value of an article is peculiarly for the jury, and the opinion of witnesses is not absolutely binding on that body, yet there must be some evidence, direct or circumstantial, to support their finding. In this case the verdict exceeded the highest valuation that could possibly be deduced from the evidence, by the 94(5)-Value of articles not de- sum of $9.96. The judgment is therefore Cause of action attached to summons in justice court held sufficiently to allege an action ex contractu for failure of carrier to deliver a consignment of deer tongue. 2. Carriers livered for jury. In action for failure to deliver consignment of deer tongue, the value of the consignment is peculiarly a question for the jury. 3. Evidence affirmed on condition that the defendant in error write off this amount from the face of the verdict, within 10 days from the date the remittitur is filed in the court below, other 568 (4)-Opinion of witness not wise the judgment will be reversed and a new trial had. binding on jury. The opinion of witnesses as to value is not absolutely binding on the jury. 4. Appeal and error 1140(1)-Excessive verdict cured by affirmance on condition of remittitur. Where, in an action for failure to deliver consignment of deer tongue the verdict exceeded the highest valuation that could possibly be deduced from the evidence, the judgment will be affirmed on condition of remittitur of excess. Error from Superior Court, Camden County; E. D. Graham, Judge. Judgment affirmed, on condition. JENKINS, P. J., and STEPHENS, J., con cur. (26 Ga. App. 241) SHEPPARD v. STATE. (No. 10997.) (Court of Appeals of Georgia, Division No. 1. Jan. 28, 1921.) Error from Superior Court, Tattnall County; W. W. Sheppard, Judge. · Action originating in justice court by S. C. O. Sheppard was convicted of compounding G. Mizell against W. D. Hines, Director Gen- a pretended offense, and he brings error. Reeral, operating the Seaboard Air Line Rail-versed in conformity to decision of Supreme way Company. Judgment for plaintiff, and Court in answer to certified questions (105 S. E. 601). defendant brings error. Affirmed on condition of remittitur. Elders & De Loach, of Reidsville, for plaintiff in error. J. Saxton Daniel, Sol. Gen., of Claxton, for the The cause of action attached to the summons was for $85.44 damages, and alleged that petitioner delivered to the Seaboard Air Line Railway Company 712 pounds of deer BROYLES, C. J. 1. "In an indictment under tongue consigned to S. B. Ponick & Co., and Penal Code, § 329, which declares, 'If any perrailway company undertook safely to deliver son, informing or prosecuting under pretense said deer tongue, which was of the value of fender, or direct the suit or information to be of any penal law, shall compound with the of12 cents per pound, and that, notwithstand- discontinued, unless it be by leave of the court ing the delivery of the deer tongue to the where the same is pending, he shall be guilty railway company and its consequent agree- of a misdemeanor,' it is not necessary to allege ment safely to deliver to consignee, the rail- the essential elements of the pretended ofway company has failed to deliver to peti-fense." tioner's damage, and that bill of lading was 2. "Evidence that the defendant caused one never issued by the railway company, and it to be arrested by an officer under pretense of refuses to so issue it, so that copy of billed with such person for a consideration withhis having committed an offense, and compoundcannot be attached.-Statement by editor. Bolling Whitfield, of Brunswick, and S. C. Townsend, of St. Marys, for plaintiff in error. Cowart & Vocelle, of St. Marys, for de fendant in error. HILL, J. [1] 1. The plaintiff's case was clearly and distinctly set forth in the cause of action attached to the summons, which out any proceeding in court, is insufficient to support a conviction under the statute quoted in the preceding note." Sheppard v. State (this case), 105 S. E. 601, decided by the Supreme Court on January 14, 1921. 3. Under the above rulings, the court did not err in overruling the demurrer to the indictment, but did err in overruling the motion for a new trial, since the verdict was unauthorized by the evidence. This ruling being control (105 S.E.) ling in the case, it is unnecessary to consider the amendment to the motion for a new trial. Judgment reversed. LUKE and BLOODWORTH, JJ., concur. (26 Ga. App. 154) CORBETT v. ATLANTIC COAST LINE R. (Court of Appeals of Georgia, Division No. 1. Error from City Court of Waycross; J. L. Crawley, Judge. Action by W. T. Corbett, next friend, against the Atlantic Coast Line Railroad Company. Judgment for defendant, and plaintiff brings error. Affirmed in conformity to decision in Supreme Court on certiorari (150 Ga. —, 105 S. E. 358). For former opinion of Court of Appeals, see 24 Ga. App. 790, 102 S. E. 464. Parker & Parker, of Waycross, for plaintiff in error. (115 S. C. 374) HUGHES v. BLAKELY. (No. 10569.) (Supreme Court of South Carolina. Jan. 31, 1921.) Set-off and counterclaim 29 (2)—Damage to farm proper counterclaim in action on cropper's contract. In laborer's action against farm owner for an accounting and for amount due under share cropper's contract, owner's counterclaim for damages sustained by reason of laborer destroying well and damaging buildings on the farm while in possession under the contract held proper. Appeal from Common Pleas Circuit Court of Laurens County; T. S. Sease, Judge. Action by Columbus Hughes against H. L. Blakely. Judgment for plaintiff, and defendant appeals. Reversed. This is an action on a share cropper's conBennet, Twitty & Reese, of Brunswick, and tract, whereby plaintiff agreed to perform Wilson & Bennett, of Waycross, for defend-labor on defendant's farm for specified period ant in error. BLOODWORTH, J. After a decision by this court, on March 2, 1920 (24 Ga. App. 790, 102 S. E. 464), this case was carried by certiorari to the Supreme Court, which held: "The facts stated in the petition, taken as true (as they must be when tested by general demurrer), fail to show negligence by the defendant, and the petition was properly dismissed." Atlantic Coast Line R. Co. v. Corbitt, 150 Ga. —, 105 S. E. 358. Complying with the ruling just stated, the judgment rendered on March 2, 1920 is vacated, and the judgment of the trial court is affirmed. BROYLES, C. J., and LUKE, J., concur. (26 Ga. App. 162) (Court of Appeals of Georgia, Division No. 1. Error from Superior Court, Floyd County; Moses Wright, Judge. in consideration for a share of crops grown on such farm and gathered by plaintiff. Plaintiff alleged that defendant breached the contract and prayed for an accounting. Defendant denied such breach, alleged that plaintiff had destroyed well and damaged buildings on the farm while in possession thereof under the contract, and interposed a counterclaim for damages sustained. Simpson, Cooper & Babb, of Laurens, for appellant. Phil D. Huff and O. L. Long, both of Laurens, for respondent. GARY, C. J. In this appeal the only exception is as follows: "Because his honor, the presiding judge, erred, it is respectfully submitted, in striking out of defendant's alleged counterclaim the words 'and left the premises of defendant after destroying a well thereon and damaging the buildings', the error being that defendant was entitled to the benefit of said allegation as a defense and counterclaim to plaintiff's cause of action, which was one for an accounting on a settlement between landlord and laborer, and the destruction of the building and well conex-stituted elements of damage properly deduct Action between the Southern Express Company and A. Victor. Certiorari was overruled by the judge of the superior court, and the press company brings error. Affirmed. Maddox & Doyal, of Rome, for plaintiff in ible from the amount, if any due, by the defendant to the plaintiff, and constituted a breach of the contract between the plaintiff and the defendant by the plaintiff." It is only necessary to cite the case of HYDRICK, WATTS, and FRASER, JJ., BROYLES, C. J., and BLOODWORTH, J., concur. concur. (115 S. C. 370) WATKINS v. ROSE et al. (No. 10566.) (Supreme Court of South Carolina. Jan. 31, 1921.) 1. Habeas corpus 48-Court has Jurisdiction to give child's custody to nonresident guardian. In habeas corpus proceeding, a contention that the court had no jurisdiction to award a minor child's custody to one residing beyond the Jurisdiction is untenable, and, although wards should not be carried beyond the jurisdiction without the court's consent, such consent is necessarily implied where the court knew that the guardian resided without the jurisdiction. 2. Habeas corpus 113(51⁄2)—Matter not raised in lower court need not be considered on appeal. Upon appeal in a habeas corpus proceeding, whether the minor child's guardian living outside the court's jurisdiction should have been required to give a bond for the child's return on proper occasion and demand, does not arise where not asked of the lower court. 3. Habeas corpus 99(1) Court may permit guardian to take minor beyond state. The power of the court over a ward is paramount to that of the parents and includes power to send such minor child or permit him to be taken beyond the state by his guardian, and such does not constitute a banishment. 4. Habeas corpus 99(2)-Giving bond for child's return to jurisdiction in court's dis cretion. Whether the court awarding a child's tody to a guardian living outside the state should require a bond for the child's return on proper occasion and demand is a matter of discretion, since otherwise the court might be prevented from doing what is best for the child, as the guardian, being a stranger, might be unable to furnish the bond. Mrs. in the custody of his aunt, the respondent Mrs. Sherman, who had brought him to Sparthat neither Mrs. Rose nor Mrs. Sherman tanburg, S. C., on a visit to her relatives; was a fit person to have his custody. Sherman denied that the child was in her custody and alleged that he was then in the custody of Mrs. Rose, who was made a party to the proceeding. She alleged that she had been divorced from petitioner on account of his cruel and inhuman treatment of her, that she was a fit custodian of the child and he was not, and asked that she be allowed to have the custody of him. Atter hearing the testimony, the judge found that neither the petitioner nor Mrs. Rose was a fit custodian of the child, and awarded his custody to Mrs. Sherman, of Valdosta, Ga., who had had custody of him for the past several years. She testified that she was financially able to take care of him and was anxious to do so. The judge found from the evidence that she was a fit custodian, and that it would be for the best interest of the child that he should be put in her care and custody, and so ordered. Mrs. Sherman immediately took the custody of the child and left the next day for Valdosta. [1, 2] The contention of appellant that the court had no jurisdiction to award the custody of the child to one who resides beyond the jurisdiction of the court is untenable. Ex parte Martin, 2 Hill, Eq. 71; Hartley v. cus-Blease, 99 S. C. 92, 82 S. E. 991; Jennings v. Anderson, 104 S. E. 189; 22 Cyc. 519; State ex rel. McGhee v. Super. Court, 99 Wash. 619, 170 Pac. 130, L. R. A. 1918C, 921. It is true as a general rule that wards of the court should not be carried beyond the jurisdiction without consent of the court. But here the consent of the court was necessarily implied, because the court knew that Mrs. Sherman resided without the jurisdiction when the custody was awarded to her. The question as to whether she should not have been required to give bond to return the child to the jurisdiction of the court, on proper occasion and demand does not arise, because it does not appear that the court was asked to require such a bond. Appeal from Common Pleas Circuit Court of Spartanburg County; T. S. Sease, Judge. Petition in habeas corpus by Charles I. Watkins against Anna Belle Rose and another for the custody of Clarence M. Watkins, a minor. Care and custody of the child granted to the defendant Mrs. J. W. Sherman, and the petitioner appeals. Judgment affirmed. [3, 4] No constitutional right of the child Graydon & Graydon, of Columbia, for ap- was violated. Certainly he was not banished. pellant. HYDRICK, J. Petitioner instituted proceedings in habeas corpus to obtain the custody of his infant son, six years of age, from Mrs. Sherman. He alleged that he was married to the respondent Anna Belle Rose (who was formerly his wife, but subsequently divorced from him and married to another), and the child was born to them at Camden, S. C.; that they separated and the wife carried the child to Valdosta, Ga., and put him from the state, as contended by appellant. Certainly, a parent has the right to put his child in school outside of the state, and no one would say that he had banished him or denied him any constitutional right in so doing. The power of the court is paramount to that of the parent. The power of the court to do what is best for the child includes the power to send him or permit him to be taken beyond the state. To deny that power is to deny the power of the court to do what is best for the child. It may be better in most (105 S.E.) cases to require a bond for the return of the | to the complaint as failing to allege that dechild, on proper occasion and demand, as was fendants did not comply with acts of 1913 regudone in Ex parte Martin. But that must be lating the test and sale of oils is not well takleft to the discretion of the court. To make en; such matter being available only as a defense. the requirement absolute might prevent the court's doing that which is best for the child, for the chosen custodian, being a stranger here, or having no property, might be unable to give a bond. Besides, in this case, the child was only temporarily within the jurisdiction. Nor was any constitutional right of petitioner denied by the order. His right of custody and property in the services of the child is inferior to the power of the court to do that which is best for him. Judgment affirmed. of Anderson County; R. W. Memminger, Appeal from Common Pleas Circuit Court Judge. Action by Mrs. A. A. Cabe as administratrix, against R. S. Ligon and others. Judgment for plaintiff, and defendants appeal. Appeal dismissed. John N. Hood and Bonham & Allen, all of Anderson, for appellants. Dickson & Miller, of Anderson, for respond ent. GARY, C. J. The following statement ap WATTS and FRASER, JJ., concur. The CHIEF JUSTICE and GAGE, J., did pears in the record: not participate on account of illness. (115 S. C. 376) CABE v. LIGON et al. (No. 10570.) "This is an action for damages for the death of respondent's intestate, caused by an explosion of oil when she attempted to make a fire therewith, and which was purchased from the firm of Ligon & Ledbetter, who had, in turn, purchased same from Petroleum Oil Company, as is alleged, and that her death was caused by (Supreme Court of South Carolina. Jan. 31, the joint, concurrent, and several negligence of 1921.) Complaint held one in 1. Action 27 (1) 9 the appellants, as a result of the sale to her by the firm of Ligon & Ledbetter of defective oil, and which in turn had been purchased by the firm of Ligon & Ledbetter from Petroleum Oil Company. "The amended complaint was served March 18, 1920, and each of the appellants demurred thereto for failure to state a cause of action as to each of them, as well as collectively, on six grounds, but insisted on only the first, second, third, and sixth grounds thereof on the hearing before Judge Memminger at the April term of court for Anderson county, who overruled same on the ground that the complaint was not demurrable on these several grounds. Parties owing the same Each defendant demurred separately, but on the same grounds." In an action for the death of plaintiff's intestate against one furnishing oil and the oil company from which such one purchased, complaint held not subject to demurrer for failure to show concerted action, collusion, or conspiracy to establish joint liability. 3. Explosives 9-Complaint for death while kindling fire with kerosene held not demur-. rable. Whether the use of kerosene oil in kindling a fire constitutes negligence as a matter of law depends upon the facts of the particular case, and a complaint for death from explosion under such circumstances of oil supplied by defendants is not demurrable where it does not show intestate guilty of contributory negligence proximately causing the injury. 4. Pleading 193(1)-Demurrer to complaint will not lie for failure to allege matters of defense. In an action for damages for the death of plaintiff's intestate alleged to have been caused by defective oil sold by defendants, a demurrer The appeal involves the first, second, third and sixth grounds of demurrer, which are as follows: "I. Because it appears from the complaint that the cause of action is based on the breach of an alleged contract between plaintiff's intestate, Mrs. Marinda Bradley, and said Ligon & Ledbetter, and there is no allegation that Petroleum Oil Company was in any manner a party thereto. "II. Because it appears on the face of the complaint that there is no joint liability of the defendants Ligon & Ledbetter Company and Petroleum Oil Company, because there is no allegation in the complaint, nor intimation therein, that these defendants acted in concert, or collusion, or through any conspiracy or agreement, or other allegation, which, if true, would show joint liability. "III. Because it appears on the face of the complaint that the approximate cause of the accident, and without which it would not have occurred, was the negligence, or contributory negligence, of plaintiff's intestate, who poured No reasons were assigned by his honor, the circuit judge, in overruling the grounds of demurrer. We will consider them in regular order. [1] First ground: The complaint alleges negligence, willfulness, wantonness, and recklessness. These are appropriate to an action arising ex delicto, and the context of the complaint shows that the allegations as to a contract were merely preliminary to the action for tort. Pickens v. Ry., 54 S. C. 498, 32 S. E. 567; Hellams v. Tel. Co., 70 S. C. 83, 49 S. E. 12; Harrison v. Tel. Co., 71 S. C. 386, 51 S. E. 119. Appeal dismissed. W. M. Smoak, of Aiken, for appellants. Appeal from General Sessions Circuit [2] Second ground: So far as concerns the Court of Aiken County; H. F. Rice, Judge. number of individuals who may be held re- Mary Franklin and Ruby Collins were consponsible, torts are either single or joint.victed of grand larceny, and they appeal. The class within which a particular instance of wrongdoing may be placed depends in general, not upon the inherent nature of the tort itself, but upon the method of its accomplishment, for nearly every tort is susceptible of commission by one or many. Where different persons owe the same duty, and their acts naturally tend to the same breach of that duty, the wrong may be regarded as joint, and both may be held liable." 38 Cyc. 483. GARY, C. J. The following are the facts upon which it was agreed that this case should be heard: "This was an indictment for grand larceny as shown by a copy of the indictment set forth herein. The goods alleged to have been stolen by the defendants were set forth in the indictCreary Company, a partnership, doing business ment to be the goods and chattels of R. W. Mcin the city and county of Aiken, and that the said indictment did not name the individual members of the said partnership. "Where, although concert is lacking, the separate and independent acts, or negligence of several combine to produce directly a single injury, each is responsible for the entire result, even though his act or neglect alone, might not have caused it. It has been "Before the jury were impaneled, the defendsaid that to make tort-feasors liable jointly, ants' attorney moved to quash the indictment there must be some sort of community in the on the ground that the said indictment did not wrongdoing, and the injury must be due in allege the names of the individual members some way to their joint work, but it is not.composing the partnership of R. W. McCreary necessary that there be acting together or in concert, if their concurring negligence occasions the injury." 38 Cyc. 488, 489. To the same effect are the principles announced in Matthews v. Ry., 67 S. C. 499, 46 S. E. 335, 65 L. R. A. 286. [3] Third ground: Whether the use of kerosene oil in kindling a fire constitutes negligence as matter of law depends upon the facts of the particular case. The facts alleged in this case do not show that the defendant was guilty of negligence per se. WatersPierce Oil Co. v. Deselmes, 212 U. S. 159, 29 Sup. Ct. 270, 53 L. Ed. 453. Company, and in failing to do so the said indictment was fatally defective. "The court held that the indictment was sufficient and the trial proceeded and terminated in a conviction of the defendants, who were duly sentenced. * * * Query: In an indictment charging larceny of the goods and chattels belonging to R. W. MeCreary Company, a partnership, doing business in the city and county of Aiken, is it necessary partners composing the said partnership beto further set out the names of the individual fore a conviction thereon can be had?" The appellants' attorney relies upon the cases of State v. Ryan, 4 McCord, 16, 17 Am. |