Action between C. B. Cox and the Gulf Guano Company. Judgment for the latter, and the former brings error. Writ of error dismissed. Chas. Watt, Jr., and Peacock & Gardner, all of Camilla, for plaintiff in error. Billie B. Bush, of Colquitt, for defendant in error. BLOODWORTH, J. Writ of error dis missed. BROYLES, P. J., and HARWELL, J., con cur. (21 Ga. App. 427) counsel for both the defendant and the state ap- BRIEF OF EVI There was no error in allowing the brief of evidence to be amended. "The trial judge may amend a brief of evidence, so as to make it speak KENNEDY v. OCEAN S. S. CO. OF SAVAN- the truth, even after it has been agreed upon by NAH. (No. 9006.) counsel, approved by the court, and filed." Elkins v. Roberson, 103 Ga. 558, 29 S. E. 755; (Court of Appeals of Georgia, Division No. 2. Price v. Bell, 88 Ga. 740(5), 743, 15 S. E. 810. Dec. 13, 1917.) (Syllabus by the Court.) 1. APPEAL AND ERROR 1058(2)-HARMLESS ERROR EXCLUSION OF EVIDENCE - SUBSEQUENT ADMISSION. Even if the exclusion of certain testimony given by the plaintiff's husband was error, the plaintiff was not injured thereby, since, as shown by the evidence contained in the bill of exceptions, substantially the identical testimony by the same witness was elsewhere admitted. 2. SHIPPING 166(4) — PASSENGER'S ACTION FOR INJURY-ALLEGATIONS AND PROOF. The plaintiff did not prove her case as laid. A material allegation in her petition was that the stairway, which descended from the hurricane or middle deck to the main or lower deck, upon the steps of which she slipped and fell, thereby sustaining the injury sued for, was "located for the purpose of affording methods of ascent and descent between said floors or decks for passengers on said vessel." In an amendment to the petition it was alleged that "passengers were permitted to use said steps by the defendant. Said steps were generally and commonly used by passengers." The proof did not sustain these allegations. 3. AWARD OF NONSUIT. Under the evidence submitted, liability of the defendant for the plaintiff's injuries was not shown, and the court did not err in awarding a nonsuit. Error from City Court of Savannah; Davis Freeman, Judge. Action by K. McL. Kennedy against the Ocean Steamship Company of Savannah. Judgment of nonsuit, and plaintiff brings er Error from City Court of Hall County; A. C. Wheeler, Judge. Ed Andrews was charged with an offense. From the verdict, he brings error. Affirmed. H. C. Swindell, of Gainesville, for plaintiff in error. Hammond Johnson, Sol., of Gainesville, for the State. BLOODWORTH, J. Judgment affirmed. Affirmed. Action between P. J. Roberts, administrator, and R. C. Carroll. Judgment for the latter, and the former brings error. Wolver M. Smith, of Athens, and Claud MaOsborne, Lawrence & Abrahams, of Savan-haffey, of Jefferson, for plaintiff in error. J. nah, for plaintiff in error. H. W. Johnson, of S. Ayers, of Jefferson, for defendant in error. Savannah, for defendant in error. ror. Affirmed. BROYLES, P. J. Judgment affirmed. LUKE, J. Judgment affirmed. WADE, C. J., and JENKINS, J., concur. BLOODWORTH and HARWELL, JJ., con cur. (21 Ga. App. 498) (21 Ga. App. 509) RUTLEDGE v. STATE. (No. 9304.) (Court of Appeals of Georgia, Division No. 2. (Court of Appeals of Georgia, Division No. 2. ANDREWS v. STATE. (No. 9218.) Dec. 19, 1917.) (Syllabus by the Court.) 1. CRIMINAL LAW 961-MOTION FOR NEW TRIAL-HEARING AND DETERMINATION. Where a motion for new trial was set for a hearing on a designated day in vacation, and Dec. 19, 1917.) (Syllabus by the Court.) DISMISSAL OF CERTIORARI. Under the facts of the case, as disclosed by the record, the court did not err in overruling and dismissing the certiorari. Error from Superior Court, Fulton County; | Savannah Electric Co. v. Lackens, 12 Ga. App. Geo. L. Bell, Judge. 765, 767, 79 S. E. 53; Martin & Sons v. Bank of Leesburg, 137 Ga. 285, 73 S. E. 387 (8). 2. WITNESSES 204(2)—PRIVILEGE-REPORT E. A. Rutledge was charged with an offense, and from the verdict and from the dismissal of a certiorari, he brings error. Affirmed. Paul L. Lindsay, of Atlanta, for plaintiff in error. Jno. A. Boykin, Sol. Gen., E. A. Stephens, and Lowry Arnold, Sol., all of Atlanta, for the State. BROYLES, P. J. Judgment affirmed. (No. 8767.) BY RAILROAD AGENT-PRODUCTION "PRIV way company to the superintendent of transpor (Court of Appeals of Georgia, Division No. 2. at a time so nearly contemporaneous with the Dec. 14, 1917.) (Syllabus by the Court.) DISMISSAL OF PETITION. transaction itself as might ordinarily permit it being received as a part of the res gestæ thereof. [Ed. Note.-For other definitions, see Words The court did not err in sustaining the de- and Phrases, First and Second Series, Privileged Communication.] murrer and dismissing the petition. Error from City Court of Valdosta; J. G. Cranford, Judge, Action by the Ladd Lime & Stone Company against J. N. Griffin. Demurrer sustained, and petition dismissed, and plaintiff brings error. Affirmed. Franklin & Langdale and E. K. Wilcox, all of Valdosta, for plaintiff in error. Whitaker & Dukes, of Valdosta, for defendant in error. BLOODWORTH, J. Judgment affirmed. BROYLES, P. J., and HARWELL, J., concur. (21 Ga. App. 453) (Additional Syllabus by Editorial Staff.) 3. EVIDENCE 118-"RES GESTÆ." tent to make them may be a part of the res In order that declarations of persons compegestæ they need not be precisely concurrent with the principal transaction, but if springing from it, and spontaneously made so as to preclude the idea of afterthought or design, they are so nearly contemporaneous as to be admissible. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Res Gestæ.] Error from Superior Court, Mitchell Coun. ty; E. E. Cox, Judge. Action by T. P. Williams against the Atlantic Coast Line Railroad Company. Judg. ATLANTIC COAST LINE R. CO. v. WIL- ment for plaintiff, and defendant brings er LIAMS. (No. 8717.) (Court of Appeals of Georgia, Division No. 1. Dec. 24, 1917.) (Syllabus by the Court.) 1 APPEAL AND ERROR 979(4)-NEW TRIAL 71-MOTION FOR NEW TRIAL-DISCRETION OF TRIAL JUDGE-REVIEW. ror. Reversed. This was a suit by a passenger claiming damages for an alleged illegal assault by the operating officials of the railroad company, and an unwarranted ejectment from the train, followed by an unjustified arrest and detention of the plaintiff, alleged to have been instigated by the defendant's officials. The order of the trial judge overruling the motion for a new trial was in terms as fol lows: "The motion for a new trial in the abovestated cause regularly coming on for hearing before me at this time and place and after hearing argument of counsel, the court wishes to make the observation that he was not im Where a first application for a new trial is based in part upon the discretionary grounds, the trial judge must exercise his discretion in passing on the evidence. Thus, where the order itself overruling the motion for a new trial is not susceptible of the interpretation that the verdict which it is sought to set aside was approved by the trial judge in the exercise of a sound legal discretion, but where, on the contrary, the order clearly indicates that although the trial judge did not himself approve the find-pressed with the plaintiff in this case, nor with ing it was nevertheless reluctantly allowed to stand because of the fact that the issues had been passed upon by the jury after having been fairly submitted, such order overruling the motion for new trial must be reversed, unless the evidence was such as to demand the verdict as rendered. Central Railway Co. v. Harden, 113 Ga. 453, 38 S. E. 949; McIntyre v. McIntyre, 120 Ga. 67, 47 S. E. 501, 102 Am. St. Rep. 71, 1 Ann. Cas. 606 (1); Thompson v. Warren, 118 Ga. 644, 45 S. E. 912; Seaboard Air Line Railvay v. Randolph, 129 Ga. 796, 59 S. E. 1110; his testimony or his case. The evidence tended to show that he boarded defendant's train in an intoxicated or semiintoxicated condition, and that he was probably at fault in the alleged first difficulty upon defendant's train, and brought upon himself the assault complained of; but this does not so strongly appear to be the case as to the alleged second assault or trouble. The court, however, is impressed with the idea that the issues in the case were fairly submitted, and the jury having passed upon the same, a new trial is reluctantly refused movant." tute a part of the res gestæ, the only question we are called upon to determine is whether or not, even though such was the case, the report was of such a confidential and privileged nature as would preclude its production on behalf of the adverse party. It was said by the Supreme Court in Carlton v. Western & Atlantic R. Co., 81 Ga. 531, 7 S. E. 623: The record shows that on the day of the | was in fact such as might ordinarily constioccurrence on which the plaintiff bases his claim for recovery, the conductor of the train made out and signed a report on a regular printed form, covering the events involved in the controversy, and forwarded it to the superintendent of transportation of the defendant company; that notice to produce this report at the trial, in order that it might be used as evidence by plaintiff, was served on the defendant and its counsel; and that at the trial counsel for the defendant objected to its production, on the grounds that: "They were in custody of said report in their capacity as counsel and attorneys for said defendant; that they, as division counsel of the defendant, were the official custodians of these reports; that said report was made out by the agent of the defendant for the purpose of being submitted to defendant's counsel for the purpose of having defendant's counsel advise defendant as to whether or not there was any liability on the part of the defendant for anything connected with the transaction reported, and to enable said counsel to prepare for the defense of the defendant, if litigation ensued; and that said report was therefore a confidential communication between client and attorneys, and was a paper of clients held by the attorneys." The record shows that this statement was accepted as evidence, and was not disputed. Pope & Bennet and Peacock & Gardner, all of Albany, for plaintiff in error. E. M. Davis, of Camilla, for defendant in error. JENKINS, J. (after stating the facts as above). [1] The rule given in the first headnote is sufficiently covered by the principle stated and the authorities cited therein. "A report which defendant, by its rules, required its conductor to make as to the circumstances and character of injuries caused by operation of its trains, etc., was not a privileged communication, and under proper circumstances its production by defendant could be compelled." However, it was said by the Supreme Court, speaking through Chief Justice Bleckley in the case of Carroll v. East Tennessee, etc., Ry. Co., 82 Ga. 452, 473, 10 S. E. 163, 6 L. R. A. 214, that the statement just quoted from the Carlton Case was merely obiter, since the question as to whether or not such a communication was privileged was not there involved. The fourth headnote of the Carroll Case, supra, is as follows: "Reports to the general manager of the company touching the facts, circumstances and results of a railway accident, and who was to blame therefor. made several days after the event by the superintendent and the conductor, supported by the affidavit of the latter and of several other employés, are not admissible in evidence to affect the company, whether such reports were exacted and made under standing rules requiring the same, or under special orders for the particular occasion, no question of notice to the company being involved in the controversy." In discussing this case, however, Chief Justice Bleckley says: "Having had their origin many days after the happening of the events to which they related, they were no part of the res gestæ of the cause of action on trial, but were mere narrative touching past occurrences.' [2, 3] Under the rule governing in this state, the sayings of an agent are admissible against the principal only upon the theory that they are a part of the res gesta. Civ. Code 1910, § 3606; Evans & Ragland v. AtSince it was thus specifically held that the lanta & W. P. R. Co., 56 Ga. 498; Georgia communication in the Carroll Case could not Ry. & El. Co. v. Harris, 1 Ga. App. 714 (2), be taken as a part of the res gestæ, the rul718, 57 S. E. 1076. But see, also, Charleston ing there made is not directly and completely & W. C. Ry. Co. v. Brown, 13 Ga. App. 744, controlling upon the question now before us. 750, 79 S. E. 932. In order that the declara- The statement quoted from the report of the tions of persons competent to make them may Carlton Case was to the effect that such a constitute a part of the res gestæ, it is not re- report would not be treated as a privileged quired that they be precisely concurrent in communication; but it will be noted that point of time with the principal transaction; nowhere does it appear in that case that the but if, springing from it and tending to ex- report was made for the purpose of being subplain it, they are spontaneously made at a mitted to counsel with the view of receiving time so near as to preclude the idea of aft- his professional advice as to liability growing erthought or of a design to misrepresent, they out of the transaction réported, and of enawill ordinarily be regarded as so nearly con- bling counsel to prepare the defense for the temporaneous as to be admissible. It will be company in the event litigation should ensue. observed, however, that the objection made The purport of the ruling in the Carroll Case to the production and introduction of the con- was to the effect that such a report, though ductor's report is not based to any extent up- made by its own servants and officials, canon the theory that it could not be considered not be taken as an admission against the comas a part of the res gesta of the transaction, pany to which it was made; at least where but rests entirely upon the ground of the con- it does not appear that the communication fidential character of the report, and thus, constituted a part of the res gesta of the pretermitting any consideration of the ques- transaction involved. In the Carroll Case, as The rule here indicated has not been uniformly followed, especially by the English cases, as is stated by the editor's note to the latter case as reported in 6 L. R. A. (N. S.) 325. There it is stated that the English courts lay down the following rules: dicate that the report was made for the pur- purpose of settlement or for use of counsel in pose of being submitted to the company's case of suit against the company, and such attorney for his guidance in anticipated liti-report remained in the custody of the claim agent until suit was commenced against the comgation. The question which presents itself pany for injury received in such accident, when now is whether such a report, even though it it was turned over to, and has ever since remight ordinarily be considered a part of the mained in the possession of, the company's counres gestæ, is nevertheless exempt from the and its production cannot be enforced in the sel, such report is a privileged communication, notice to produce served by the opposite par- taking of depositions in such suit before the ty, on the ground of its privileged character, trial." because of the fact that it came into existence as a result of communications between attorney and client with a view to future litigation. It has been stated, as a general rule, that communications between principal and agent, or master and servant, or other communications made in the ordinary course of business, are not in any way privileged, but may be given in evidence. 23 Am. & Eng. Enc. of Law (2d Ed.) 100 (1). But this rule must be construed in the light of the principle already stated, that the declarations of an agent can be admitted against his principal only when they constitute a part of the res gestæ of the transaction. Confidential communications between a principal and his agent are not relevant merely as admissions. In re Devala Provident Gold Min. Co., L. R. 22 Ch. Div. 593. Thus the effect of the ruling in the Carroll Case was to hold that if the re (1) "When an accident happens, and the agents of the corporation, in the course of their ordinary duty, make a report to the company, whether before or after action brought, that report is not privileged, and is subject to inspec tion." (2) "But where a claim has been made, and the company seeks to inform itself by a medical examination as to the condition of the person making the claim, that report is privileged, and inspection is not granted." (3) "And reports are privileged which are procured by, or at the instance of, the corporation's solicitor, after action brought against the corporation, for the purpose of enabling him to conduct the legal proceedings." The English precedents as to the first proposition are, however, certainly not in harmony with the rule adopted by our Supreme Court, as laid down by Chief Justice Bleckley in Carroll v. East Tennessee, etc., Ry. Co., supra; and in our opinion the reasoning of that case is in entire harmony with the doctrine set forth by the American cases above cited. The rule as quoted from the decision of the Supreme Court of Ohio appears to be port there involved was admissible at all, it was not because of its relevancy merely as the admission by an agent of defendant or because of its reception by the company, but only on the theory that it constituted a part of the res gesta; but whether or not it would even then be admissible was not in fact de cided, and that, too, in a case where the relationship of attorney and client was not involved. But, assuming that the communica-founded upon principles of reason, justice, tion involved in the case now under consideration could be taken as being what would ordinarily constitute a part of the res gestæ, does the fact that it was made in the manner and for the privileged purpose set out by the defendant prevent its production and use by the adverse party? The rule laid down in 23 Am. & Eng. Enc. of Law (2d Ed.) 100 is as follows: "A statement submitted by an agent to his principal at the request of the latter, for the purpose of being laid before an attorney for his advice or opinion, for guidance in litigation, is privileged." This rule has been followed in numerous adjudications by the courts of this country. See Davenport Co. v. Pennsylvania Railroad, 166 Pa. 480, 31 Atl. 245; Cully v. Northern P. R. Co., 35 Wash. 241, 77 Pac. 202; Re J. H. Schoepf, 74 Ohio St. 1, 77 N. E. 276, 6 L. R. A. (N. S.) 325. In the latter case the court held: "Where, pursuant to a standing rule of the company, a report was made to the company's claim agent, by the conductor and motorman of an electric car, of an accident in which a passenger was injured and detailing the circum stances of the accident, which report was made for the information of the claim agent for the and fairness, and comports with the ruling made in Southern Railway Co. v. White, 108 Ga. 201, 33 S. E. 952 (2), where it was held: "Statements made in letters written by a client to his attorney, concerning matters connected with litigation which the attorney has been employed by the client to conduct, are ble in evidence against the client." confidential communications, and are inadmissi It is also within the spirit and reason of the language used by Chief Justice Bleckley in the Carroll Case, where he said: "It surely cannot be sound law to hold that by collecting information, whether under general rules or special orders, and whether from its own officers, agents, and employés or others, a corporation acquires and takes such information at the peril of having it treated as its own admissions, should litigation subsequently arise touching the subject-matter." It does not seem that this just right and privilege should be denied merely because it so happens that in taking such information for the benefit of its counsel, such a report, though made entirely subsequent to the actual occurrence and in no way entering into and affecting the transaction itself, yet was so closely proximate thereto as would ordinarily permit it being taken as a part of the Judgment reversed. WADE, C. J., and LUKE, J., concur. (21 Ga. App. 502, DUNBAR v. STATE. (No. 9235.) (Court of Appeals of Georgia, Division No. 2. Dec. 19, 1917.) (Syllabus by the Court.) INTOXICATING LIQUORS 240 - OFFENSES VERDICT "SPECIAL VERDICT.' The act of transporting whisky subsequently to the act of 1917 (Acts 1917 [Extra. Sess.] p. 8, § 1) is in itself a violation of the prohibition laws of this state. Accordingly, when on an accusation charging the defendant with a violation of such law in several different ways the verdict finds him "guilty of transporting whisky," the verdict is not a special verdict stopping short of the facts requisite to a conviction, but is a finding that the defendant violated the prohibition law by transporting whisky. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Serics, Special Verdict.] Error from City Court of Richmond County; J. C. C. Black, Jr., Judge. B. S. Dunbar was convicted of a violation of the prohibition law, his motion in arrest of judgment was overruled, and he brings res gestæ. In other words, we do not think | admissible and entirely relevant. Rylee v. that a report made for this purpose, and en- Bank of Statham, 7 Ga. App. 489, 67 S. E. tirely disconnected with the transaction it- 383 (1), (a). self, could properly be treated as a part of the res gestæ, even though made at a time so nearly contemporaneous with the transaction as would ordinarily permit it being so considered. The time when statements may be made cannot in all cases be taken to absolutely govern the determination of the question as to whether or not they constitute a part of the res gestæ, but each case turns on its own circumstances, and the inquiry is into events rather than into the precise time which has elapsed. Hall v. State, 48 Ga. 607. Able counsel for defendant in error, in his brief and argument which is exceptionally strong and clear, in our opinion very properly states that if the mere placing of such a report in the hands of an attorney would of itself work a bar to its production for the purpose of being used in testimony, that it would then be impossible to compel any defendant or any plaintiff to produce any kind of paper, deed, book, or record, to be used in the trial of a case, because, if this were the rule, a party to a suit holding any instrument which he might not wish to produce and disclose would simply need to place the same in the hands of his attorney, and then claim that it was exempt from production because of such custody. As we understand the rule, certainly as applying to papers and documents not pre-existent, an attorney may be compelled to produce in evidence any paper or record in his possession belonging to his client which the client himself could be compelled to produce; the test being as to whether the document would, independently of a professional privilege, have been exempt from production in the hands of the client himself. But where the existence itself of the document grows out of and is owing to the relationship subsisting between attorney and client, and as a result of communications thus had, it is for that reason privileged in the hands of the attorney. Pearson v. Yoder, 39 Okl. 105, 134 Pac. 421, 48 L. R. A. (N. S.) 334, Ann. Cas. 1916A, 62. It is further contended by counsel for the defendant in error that the report of the conductor was relevant for the reason that by it the defendant company became charged with notice of the occurrence, after which notice, as was alleg ed in the petition, it continued to keep the officials in its employment, thereby rendering itself liable to additional or aggravated damages by reason of such implied ratification. Gasway v. Atlanta & W. P. R. Co., 58 Ga. 217 (4); Western & Atlantic Railroad v. Turner, 72 Ga. 292, 296, 53 Am. Rep. 842. If. however, the report was confidential and privileged, we do not think its contents should be forcibly disclosed for such a purpose, although the fact that such report had been made and furnished might well be properly error. Affirmed. C. H. & R. S. Cohen and Archibald Blackshear, all of Augusta, for plaintiff in error. W. Inman Curry, Sol., of Augusta, for the State. HARWELL, J. The defendant was tried on an accusation charging him with "a misdemeanor, to wit, violating prohibition law, for that the said defendant, in the county aforesaid, on the 13th day of September, 1917, did unlawfully transport, ship, and carry, and caused to be transported, shipped, and carried, from a point without this state to a point within this state, and from place to place in this state, spirituous, vinous, malted, fermented, and intoxicating liquors; and did have, receive, control, and possess, in this state, spirituous, vinous, malted, and fermented liquors." The jury returned a verdict as follows: "We, the jury, find the defendant guilty of transporting whisky.” The defendant made a motion in arrest of judgment, upon numerous grounds, the substance of them all being that "the verdict returned by the jury does not find the defendant guilty of any crime or offense upon which judgment or sentence can be pronounced." The trial judge overruled this motion and pronounced sentence, to which judgment the defendant excepted. The sole question for determination |