in asserting the rights of their testator under that contract.

7. The defendant moved in arrest of judgment upon various grounds. All of these related to matters which could have been urged by way of special demurrer, or by plea in abatement. Defects in pleadings, which are of an amendable nature, should be taken advantage of by demurrer, and cannot be reached by a motion in arrest of judgment. Likewise, matters which may be pleaded in abatement afford no reason for arresting a judgment which is authorized by the pleadings. The verdict was authorized by the pleadings and demanded by the evidence, and the decree followed the verdict. There was therefore no merit in the attack made upon the decree.

Judgment affirmed. All the Justices con

A railroad company is bound to use extraordinary care and diligence to protect its passengers, while in transit, from violence, injury, or outrage or humiliation by third persons. This protection must be afforded by the conductor to the extent of all the power with which he is clothed by the company or by the law, and his failure to afford it, when he has knowledge that there is occasion for his interference, will subject the company to liability in damages.

[Ed. Note. For cases in point, see Cent. Dig. vol. 9, Carriers, §§ 1125-1135.]

2. SAME-WHITE AND COLORED PASSENGERSACCOMMODATION.

Railroads doing business in this state are required by its statutes to furnish "equal accommodations in separate cars or compartments of cars for white and colored_passengers," and it is also declared that "the officers or employés having charge of such railroad cars shall not permit white and colored passengers to occupy the same car or compartment." Pen. Code, 1895, §§ 526, 529.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Carriers, § 1052; vol. 10, Civil Rights, 7.]

8. SAME-INSTRUCTIONS.

The charge of the court did not accurately submit to the jury the law applicable to the case made by the pleadings and evidence, and entirely omitted any reference to the contention made by the plaintiff in his pleadings and evidence as to whether the conductor permitted a drunken and disorderly passenger to remain in a car where he had no right to be, and there to commit the acts complained of by the plaintiff.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Carriers, §§ 1125-1135, 1326-1337.]

(Syllabus by the Court.)

Error from Superior Court, Dekalb County; L. S. Roan, Judge.

Action by Jonas Hillman against the Georgia Railroad & Banking Company. Judgment for defendant, and plaintiff brings error. Reversed.

Jonas Hillman brought an action for damages against the Georgia Railroad & Bank| ing Company, alleging as follows: On March 5, 1904, he was a passenger on the night train on defendant's road. On the train was a drunken ruffian and desperado by the name of Scruggs. When Scruggs boarded the train at Atlanta he was drunk, and the conductor saw him, knew his character, and was negligent in allowing him to board the train. When the train left Atlanta he began to curse and abuse the passengers, brandished a pistol, and continued his conduct until the train passed the station at Decatur. The conductor heard his language and saw his conduct, but did not arrest him or put him off the train. The conductor was notified of the dangerous and threatening conduct of Scruggs several times before the assault upon the plaintiff. Scruggs went into the car for colored people, where he had no right to be, and where the plaintif (a colored person) rightfully was, quietly seated, having paid his fare to his destination. Without cause Scruggs began a violent assault upon the plaintiff, in sight of the conductor. He drew a pistol,' cursed and threatened to shoot the plaintiff, and drove the latter from his seat and out of the car, all the while in the presence of the conductor, whom the plaintff asked for protection, but who failed to protect him. The defendant denied the substantial allegations of the petition. The evidence for the plaintiff was sufficient to support the essential allegations, and to authorize a recovery. On behalf of the defendant it was sought to show that Scruggs did not, in fact, commit all the acts alleged in the declaration. Witnesses for the defendant, however, testified that Scruggs had often ridden on the train previously in a drunken condition, but had never created a disturbance before; that he was somewhat drunk on board the train at the time of the occurrence complained of; that he wanted more liquor, and went into the car occupied by colored passengers, and was there for the purpose of trying to get a drink; that he was told that he had no business in there where negroes rode; that he said he intended to stay in there and get liquor to drink; and that he went back in the rear of the car which was being used for negroes that night, and sat with one of them. The defendant's conductor testified, among other things, as follows: "I put all the negroes in the smoker and compartment car. They occupied the whole car. I used the front end of it, the smoker part of it for the negroes. After leaving Atlanta I found Scruggs in the ladies' car in the rear of the negro car, and asked him for a ticket. He said: 'Cap, go ahead; I will give it to you directly." I went through and finished, and didn't see any more of him until after leaving Decatur. I found Scruggs again, and he was in the front end of the ne gro car; that is, the negro car next to the

baggage car. I said to him: 'Scruggs, you will have to come into this other car.' He was with two negroes, talking to them. • I went on working the train, and hurried back after leaving Clarkston, and found him fussing in there. I told these two negroes to get him out of the car. I didn't have time to bother with him then. I came back after leaving Clarkston and found him and one of the negroes in a seat in the smoker of the partition car, sitting in there. They were sitting on the seat together. Scruggs pulled out his knucks that way, and told this negro what a man he was. Then he reached in the other hip pocket and pulled out his pistol and said: 'I ain't scared of no damn man.' I said: 'Scruggs, you must put up that gun. I am not going to have any trouble in here at all.' This negro that was sitting with him, I said to him, to go in the other car. Scruggs had never ordered him in there at all. The negro got up and went on in the other car. Scruggs then asked me did I want the others out of there, and I said: 'No, I am using this car for the negroes to night.' That time one or two negroes walked on through the other car. I think Jonas was about the second or third or fourth one, and he went on out with the other negroes. Scruggs said nothing to any of the negroes, only asked me did I want to get them out of there. I told him, 'No,' to let them alone; he had no right to bother them; and that I was using this car for the negroes. Then he got up after the negroes went out and said: 'If a darky puts his head through that door, I am going to shoot him.' About that time Jonas stuck his head in, I suppose it was Jonas, and he said: 'Give me my bundle.' I said: 'Keep your head back in there, and I will give you your bundle.' Scruggs had the gun in his hand, but he never pointed the gun or followed them. He simply held the gun in his hand. ... I stayed with Scruggs until the train stopped at Stone Mountain. I went out on the steps and he got off. He didn't put his gun up until he got on the steps.

My flagman said that one of the negroes was complaining about not being protected, and I spoke to Jonas. Jonas did not speak to me; the flagman told me. I spoke to him. He asked me why I had not protected him. And I said I thought I did protect him. I asked him why he did not stay in there and help me, and he said: 'I was fixing to kill that man.'" The defendant company afterwards caused Scruggs to be prosecuted and fined for pointing a pistol at Hillman. He was also indicted for carrying concealed weapons, but, on pleading guilty to the former indictment, a nolle prosequi was entered as to the second. The jury found for the defendant. The plaintiff moved for a new trial: (1) Because the verdict was contrary to law and the evi

dence. (2) Because the court charged as follows: "A conductor or other agent would not be justified in expelling from a train a passenger of known bad or turbulent character, so long as such person was not guilty of conduct seriously annoying or dangerous to other passengers." (3) Because the court charges as follows: "If a passenger is guilty of boisterous and improper conduct, but desists from it after request or remonstrance or command of the conductor, the conductor would not be justified in expelling him from the train after he had so desisted." (4) Because the charge of the court did not cover or refer to the material issue in the case insisted on by the plaintiff-that Scruggs was in the car set apart for colored people, where he had no right to be, and there remained with the knowledge and permission of the conductor, who should have excluded him therefrom-that this was the proximate cause of the injury; and that the court made no reference to the law requiring separate cars for white and colored passengers on railroads. This motion was overruled, and the plaintiff excepted.

Gleaton & Gleaton, for plaintiff in error. Jos. B. & Bryan Cumming and M. A. Candler, for defendant in error.

LUMPKIN, J. (after stating the above facts). According to the evidence for the plaintiff, a passenger car set apart for colored passengers, as provided by law, was invaded by a drunken person, who was guilty of violent conduct, terrorizing the occupants of the car, and compelling the plaintiff to leave his seat and ride on the platform, while the conductor remained idly by and neither protected the passengers nor arrested or ejected the offender. The evidence of the conductor, which is partly copied in the statement of facts, shows how mildly he dealt with the boisterous passenger. A railroad company is bound to use extraordinary care and diligence to protect its passengers, while in transit, from violence, injury, or outrage and humiliation by third persons. Brunswick & Western R. Co. v. Ponder, 117 Ga. 63, 43 S. E. 430, 60 L. R. A. 713, 97 Am. St. Rep. 152. This duty applies to whether the passenger is white or colored. "This protection must be afforded by the conductor to the extent of all the power with which he is clothed by the company or by the law, and his failure to afford it, when he has knowledge that there is occasion for his interference, will subject the company to liability in damages." Richmond & Danville R. Co. v. Jefferson, 89 Ga. 554, 16 S. E. 69, 17 L. R. A. 571, 32 Am. St. Rep. 87. Conductors are clothed with police powers, and authorized to stop the train where the offense is committed, or at the next stopping place, and eject a passenger who is guilty of disorderly conduct, or of using obscene, profane or vulgar language or gaming on the train, and he

may cause the offender to be detained and delivered to the proper authorities for trial as soon as practicable. Pen. Code 1895, § 902. "With or without a ticket, a passenger has no right to remain on a train and be carried when he is disorderly, or uses any obscene, profane, or vulgar language." Peavy V. Georgia R. Co., 81 Ga. 485, 8 S. E. 70, 12 Am. St. Rep. 334. It is evident that the conductor's own testimony made but a scant excuse for not protecting the plaintiff from being threatened, humiliated, and placed in danger by a drunken passenger, if indeed it amounted to an excuse at all.

The presiding judge did not present the issues in this case with his usual ability and clearness. If, in the charge to the effect that a conductor would not be justified in expelling from the train a passenger of known bad and turbulent character "so long as such person was not guilty of conduct seriously annoying or dangerous to other passengers," the word "seriously" is to be construed as qualifying both the words "annoying" and "dangerous," the charge was clearly erroneous. A passenger does not have to be in serious danger before the duty of the conductor to protect him arises. If that word is to be considered as qualifying the word "annoying" only, it is still of doubtful propriety. In Pittsburgh, Cincinnati & St. Louis R. Co. v. Vandyne, 57 Ind. 576, 26 Am. Rep. 68, it is said: "A railroad company may refuse to receive and carry as a passenger any person who is so intoxicated as to be disgusting, offensive, disagreeable, or annoying, as long as he continues in that condition, though he may have purchased a ticket entitling him to passage. Slight intoxication, such as would not seriously affect the conduct of the passenger, will not justify a railroad company in refusing to receive and carry him." Here the word "seriously" is used with respect to the effect on the conduct of the intoxicated passenger, not as holding that his conduct must be seriously annoying or dangerous to other passengers. Of course, mere trivial annoyance, or such as would not arise to a reasonable person, but only to the supersensitive or fastidious, would not fall within the rule. It must be substantial, not trivial. The illustration of counsel for defendant of a child who cries or a man who snores is not apt. These are innocent, natural acts. The annoying conduct of a drunkard or rowdy is a voluntary wrong, or one resulting from his voluntary act. The writer can conceive, however, of snoring, or even laughter, which might assume such abnormal proportions and become so loud and prolonged that the sleeper should be waked or the guffaw checked in the interest of other passengers, especially if the unusual noise resulted from drunkenness. On page 579 of 57 Ind. (26 Am. Rep. 68) of the authority above cited it is said: "A person so drunk as to be likely to violate the common proprieties, civilities, and decencies of life has no right to a passage while in

that condition. The comfort and convenience of passengers must be protected, their opinions and feelings regarded, and proper decorum observed, and although, in a railroad passenger car, neither the highest breeding of the drawing-room nor the fastidious delicacy of the parlor is required, yet the behavior of all persons therein should be becoming to the place and the general character of the passengers." See, also, Pittsburgh & Connellsville Railroad Co. v. Pillow, 76 Pa. 510, 18 Am. Rep. 424; Flint v. Norwich & N. Y. Co., 34 Conn. 554, Fed. Cas. No. 4,873; Pittsburgh and Fort Wayne Railway Co. v. Hinds, 53 Pa. 512, 91 Am. Dec. 224; Murphy v. Union Ry. Co., 118 Mass. 228; Jencks v. Coleman, 2 Sumn. 221, Fed. Cas. No. 7,258. As to the care due to an intoxicated passenger who has been taken on board and is proceeding on his journey, see Milliman v. New York Central Ry. Co., 66 N. Y. 643; Brown v. Memphis & Charleston R. Co., 1 Am. & Eng. R. C. 247.

Railroads doing business in this state are required by its statutes to furnish "equal accommodations, in separate cars, or compartments of cars, for white and colored passengers," and it is also declared that "the officers or employés having charge of such railroad cars shall not permit white and colored passengers to occupy the same car or compartment, and a violation of this section shall be a misdemeanor." Pen. Code 1895, §§ 526, 529. "The conductor and any and all employés on such cars have power to eject from the train or car any passenger who refuses to remain in such car or compartment or seat as may be assigned to him." Pen. Code 1895, § 528. See, also, Civil Code 1895, § 2270 et seq. The plaintiff expressly alleged that Scruggs, a white passenger, was drunk and disorderly; that he went into the car set apart for colored people, where he had no right to be, and where the plaintiff was rightfully and quietly seated, and, without any cause or provocation, began a violent assault upon the plaintiff, threatening and cursing him; that he drew a pistol, threatened to shoot the plaintiff, and drove the latter out of his seat and out of the car; and that all of this was in the presence of the conductor, whom the plaintiff continued to ask to protect him, but who failed and refused to do This was denied by the defendant in its answer. In his charge to the jury the presiding judge made no reference whatever to the very material issue as to the place where the alleged assault took place, or whether Scruggs was allowed to remain in a car where he had no lawful right to be, and to assault the plaintiff who was lawfully there, or there to commit the other acts complained of. Whether the plaintiff was lawfully in that car, and Scruggs was unlawfully there, and was permitted to remain there and to so act as to drive the plaintiff from his seat or necessitate his leaving it, was a material issue in the case, and it was

So.

error to omit altogether any reference to it. If Scruggs had no right to be at that place, and the plaintiff did have such a right, the conductor should have dealt with the situation with the requirements of the law in view.

It is contended, on behalf of the defendant in error, that the only damages claimed are based on the assault or threatened assault, and not upon a violation of the statute in reference to separation of races, the reference to the fact that Scruggs was in the car set apart for colored people being merely incidentally mentioned. A reading of the allegations on this subject, which are, in effect, stated above, will show that they were not incidental, but material and substantial. a later portion of the declaration, in setting out the alleged negligence of the defendant, it is stated, among other things, "that the defendant in all the particulars aforesaid failed to exercise extraordinary care to protect the person of the plaintiff, who was its passenger on its train, but exposed the person of the passenger to danger by its negligence."

In

remon

The charge that "if a passenger is guilty of boisterous and improper conduct but desists from it after request or remonstrance or command of the conductor, the conductor would not be justified in expelling him from the train after he had so desisted," is not an accurate, concrete statement of the law applicable to the facts disclosed by the evidence in this case. It omits entirely any consideration of the question as to whether the conductor made a request or strance or command in due time and in the proper manner for the protection of other passengers. Savannah, Florida & Western R. Co. v. Boyle, 115 Ga. 836, 42 S. E. 242, 59 L. R. A. 104. Moreover, if Scruggs was in a place where he had no lawful right to be, and the conductor permitted him to remain there, with a pistol in his hand, to the exclusion of the passengers who had a right to be there, this could hardly be called a desistance from the improper conduct. In Pittsburgh, Fort Wayne & Chicago Railway Co. v. Hinds, 53 Pa. 517, 91 Am. Dec. 224, supra, Woodward, C. J., in speaking of a conductor who failed to use proper efforts to suppress riotous conduct on the train, said: "Nor did his exhortation to the passengers to throw the fighters out come up to the demands of the hour. He should have led the way, and no doubt passengers and hands would have followed his lead."

Judgment reversed. All the Justices con

cur.

(127 Ga, 51)

HOLDER v. STATE. (Supreme Court of Georgia. Dec. 12, 1906.) 1. MALICIOUS MISCHIEF INDICTMENT.

In an indictment under Pen. Code 1895, § 729, which provides a punishment for willful and malicious mischief in injuring or destroying public or private property, it is unnecessary

to allege either that the owner of the property injured suffered loss or damage or that the property was of any stated value. Harris v. State, 73 Ga. 41.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 33, Malicious Mischief, § 9.] 2. SAME-EVIDENCE-OWNERSHIP.

In a prosecution for malicious mischief, the ownership of the property injured or destroyed must be proved as charged, though, if the injured property be attached to realty, ownership will be inferred from proof of possession or occupancy of the alleged owner. Grant v. State, 47 S. E. 524, 120 Ga. 200, 201. But proof of title to property attached to realty, where no possession is shown, cannot be made by the oral statement of the prosecuting witness that he was the owner of the property injured. Bleckley v. White, 25 S. E. 592, 98 Ga. 594. A parol statement by a witness that a fence permanently attached to realty was "the property" of a named person should have been excluded on objection.

(Syllabus by the Court.)

Error from Superior Court, Stewart County; Z. A. Littlejohn, Judge.

Mattie Holder was convicted of malicious mischief, and brings error. Reversed.

B. F. Harrell and G. Y. Harrell, for plaintiff in error. F. A. Hooper, Sol. Gen., for the State.

EVANS, J. Judgment reversed. All the Justices concur.

(127 Ga. 17)

GRIFFIN et al. v. SANBORN et al. (Supreme Court of Georgia. Nov. 16, 1906.) 1. PRIVATE ROADS-OBSTRUCTION-REMOVAL. The act of August 15, 1904 (Acts 1904, p. 252), conferring upon the county board of commissioners of Decatur county "all the powers and duties of the ordinary of Decatur county, so far as the same relate to roads, bridges, ferries," did not confer upon such commissioners jurisdiction to remove obstructions from private ways. See, in this connection, Bailey v. Bazemore, 66 Ga. 537; Fortson v. Mattox, 67 Ga. 282. [Ed. Note. For cases in point, see Cent. Dig. vol. 40, Private Roads, § 34.]

2. HIGHWAYS-"ROADS."

The word "road," in its popular sense, is a generic term, including overland ways of every character; but it has no fixed meaning in the law, the scope to be given it depending upon the context in which it appears. Southern Ry. Co. v. Combs, 53 S. E. 508, 124 Ga. 1006. 3. STATUTES GENERAL LAW REPEAL BY SPECIAL ACT.

The act of 1872, embraced in Pol. Code 1895, § 679, prescribing a method of removing obstructions from private ways by petition to the ordinary of the county within which the private way is located, is a general law having uniform operation throughout the state, and is not subject to repeal or modification by a special or local law.

[Ed. Note. For cases in point, see Cent. Dig. vol. 44, Statutes, § 238.]

4. PRIVATE ROADS-OBSTRUCTION-REMOVAL. The courts will not impute to the lawmaking power an intention to violate the Constitution, and, when the words of a statute are equivocal in meaning, that interpretation will be placed upon them which will make it conform to the terms of the Constitution. Applying this rule in the present case, the word

"roads." in the act of 1904 (Acts 1904, p. 252), will be interpreted not to include a private way.

(Syllabus by the Court.)

Error from Superior Court, Decatur County; W. N. Spence, Judge.

Action by Teresa Griffin and others against Annie Sanborn and others. From the judgment, Griffin and others bring error. Affirmed.

Longley & Wilson, for plaintiffs in error. Russell & Hawes, for defendants in error.

ATKINSON, J. Judgment affirmed. All the Justices concur.

(126 Ga. 762)

MCCARTHY v. NIXON GROCERY CO. (Supreme Court of Georgia. Nov. 14, 1906.) 1. SALE-TERMS-PAYMENT ON DELIVERY.

"Where a sale of goods has been made, in the absence of proof of either contract or custom concerning payment therefor, the presumption is that the amount is payable on delivery.' Morris v. Root, 65 Ga. 686; Civ. Code 1895, § 3550.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 43, Sales, § 230.]

2. INTEREST-ACCOUNTS.

Originally the Code provided that "all accounts of merchants, tradesmen, and mechanics, which by custom become due at the end of the year, bear interest from that time upon the amount actually due whenever ascertained." Code 1863. § 2030. By the act of 1873 (Acts 1873, p. 22) the words "all others" were inserted after the word "mechanics." But this left the words "which by custom," etc., as qualifying all the classes of accounts previously mentioned. Sections 3550 and 2885 of the Čivil Code of 1895 are not in conflict. 3. SAME.

The ruling in the eighth headnote in the case of Adkins v. Hutchings, 4 S. E. 887, 79 Ga. 261, so far as it conflicts with the rule above laid down, must yield to the decision in the older case of Morris v. Root, above cited. 4. SALE-FAILURE TO PAY-DAMAGES.

Upon a suit for a breach of a contract for the sale of goods to be paid for on delivery, resulting from a failure to pay the purchase money, the measure of damages is the agreed price, with interest from the time of delivery, or, in the absence of an agreement as to the price, the reasonable value of the article sold, with interest from the date of delivery. 5. SAME.

There was in the present case no evidence of an agreement as to the time of payment, nor of a custom of trade regulating the matter, and the plaintiff was entitled to recover interest on the value of the articles sold from the date of delivery.

Error from Superior Court, Richmond County; H. C. Hammond, Judge.

Action by the Nixon Grocery Company against T. F. McCarthy. Judgment for plaintiff. Defendant brings error. Affirmed. P. C. O'Gorman, for plaintiff in error. Saml. H. Myers, for defendant in error. ATKINSON, J. Judgment affirmed. All the Justices concur.

BROOKING v. STATE.

APPEAL

(127 Ga. 52)

REVIEW

(Supreme Court of Georgia. Dec. 12, 1906.) CRIMINAL LAW REFUSAL OF NEW TRIAL. No error of law being complained of in any ground of the motion, except one which is treated as abandoned, because not referred to in the brief of counsel for plaintiff in error, and the evidence being sufficient to sustain the finding of the jury, this court will not disturb the judgment of the court below refusing a new trial.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 3012.]

(Syllabus by the Court.)

Error from City Court of Sparta; F. L Little, Judge.

Emory Brooking was convicted of crime, and brings error. Affirmed.

T. L. Reese and Seaborn Reese, for plaintiff in error. R. W. Moore, Sol., for the State.

GRAVES v. STATE. (Supreme Court of Georgia. Dec. 11, 1906.) 1. INTOXICATING LIQUORS - TAKING ORDERS IN PROHIBITION COUNTY-EVIDENCE.

On the trial of one charged with taking orders for the sale of intoxicating liquors in a prohibition county, the evidence for the state was to the effect that, within the statute of limitation, many persons frequently went to the accused, at his place of business in such county, and paid him the price of the quantity and variety of intoxicating liquor they desired, whereupon he ordered such liquor over a longdistance telephone from his place of business of divers liquor dealers in other counties, and subsequently delivered the liquor to the purchasers, at his place of business, upon the payment by them of the express charges on the same; the purchasers not knowing from whom the liquor was ordered, nor paying anything for the telephone message. Held, that the evidence authorized a verdict of guilty of the offense charged. See Walker v. State, 50 S. E. 994, 122 Ga. 747; Id., 52 S. E. 319, 124 Ga. 97.

2 CRIMINAL LAW-APPEAL-REVIEW-OBJECTIONS WAIVED.

Points in the record, made by plaintiff in error, but not referred to in the brief of his counsel, will be considered as having been abandoned.

[Ed. Note. For cases in point. see Cent. Dig. vol. 15, Criminal Law, § 3012.]

(Syllabus by the Court.)

Error from Superior Court, Crisp County; Z. A. Littlejohn, Judge.