text:
    442.
    SOUTHERN STATES PORTLAND CEMENT CO. v. HELMS.
    I. In a suit by a servant against the master, the petition should plainly and distinctly set forth the elements necessary to a recovery. Legal results arising from the facts alleged may be pleaded in general terms or in the form of a legal conclusion. A petition so drawn is good against demurrer.
    (а) In such a petition, as to the element of the master’s knowledge of the defect in the instrumentality causing the injury, if the facts alleged make a case where, by law, the duty of knowing of the defect is imposed upon the master, the pleader may, without subjecting his petition to successful attack by demurrer, charge in general terms that the master “knew or ought to have known” of the defect; aliter, where tliefacts alleged do not, as á matter of law, devolve this duty upon the master.
    (б) Among the absolute duties of the master is that of making inspections for the discovery of defects and dangers in those instrumentalities, within the range of which the servant is likely to come, in the discharge of his duties; hence, by law, the master ought to know of such defects as a reasonable inspection would disclose.
    (c) The servant must allege and prove his lack of knowledge, both actual' ' and constructive, of the defect; but this want of knowledge, especially in eases where the death of the servant has resulted, may be shown circumstantially.

      (d) As a general rule, a servant is under no obligation to inspect the appliances about which he works, or that part of the plant by which his safety may be affected, for the purpose of discovering concealed dangers which would not be discovered by superficial observation.

      (e) If the allegations of the petition show that the machinery furnished by the master was not reasonably safe for a servant operating it with reasonable care and diligence, the petition is not subject to demurrer on the ground that it is not also alleged that it was not equal in kind to that in general use. ■ **’
    (f) Sections 2611 and 2612 of the Civil Code are not statutory.in origin; they are not, and do not purport to be, exhaustive of the subject of the reciprocal liabilities and duties of master and servant; they are mere codifications of particular phases of the law as applied by the Supreme Court in certain reported eases, and, for tlie most part, rest on statements culled in those cases from text-books; and are therefore to be construed in connection with the entire general law on the subject.
    2. An amendment to the petition which merely amplifies or varies the acts of negligence from which it is alleged an injury resulted is not subject to the objection that it sets forth a new and distinct-cause of action.
    Action for damages, from city court of Polk county — Judge Irwin. March 25, 1907.
    Submitted June 25,
    Decided July 10, 1907.
    The error assigned in this case is the overruling of a general ■and special demurrer to the plaintiff’s petition. -The petition, in substance, alleges: (1) The jurisdiction of the court over the person of the defendant. (2) That defendant has damaged plaintiff in the sum of ten thousand dollars. (3) That “petitioner is the wife of one Charles E. Helms, who was, on the 2,4th day of October, 1905, killed while engaged at his work as what is known as oiler, at the plant of defendant, where the defendant is engaged in the manufacture of cement, in said county.” (4) That “her--said husband was at work at said cement plant, and the only .duty he had to perform under his contract of employment was to oil the machinery, which he was doing at the time he was killed.” (5) That “it was not her husband’s duty »to watch and keep in repair, or to adjust any of the said machinery, or to examine the same at. - -any time, or to observe or inspect it and note any misconstruction or disarrangement thereof; that he was incompetent to do so;, which was known to the said defendant.” (6) That “among-the - machinery of the defendant at said plant there is what is known: as ‘Tube Mill’ number four, which is constructed.and connected with and operated by a line of iron shafting, which rests .upon a cement wall and extends from an electric dynamo or motor, near said cement -wall, across said wall to a cog wheel that is attached to the large drum or tube, in which the cement material is in some manner treated; that on top of said cement wall where the said shafting rests, there is a boxing or journal in which said shaft •revolves; and on top of this boxing or journal are two places or small holes 'made to admit oil therein, and that this particular place and piece of machinery was being oiled by petitioner’s husband at the time of his death.” (7) That “there is an iron cuff or collar that is made in two pieces, that is fastened together on each of two sides of said-shafting by bolts and set-screws. The said cuff or collar is made with a trench or groove in the outer circular edge thereof, evidently for the purpose of permitting the said cuff or collar to be fastened together and around said shafting by means of two iron bolts, and at the same time prevent said bolts and also the set-screw (which holds the cuff or collar in place) from protruding beyond the outer surface of the said cuff or collar, and, upon being properly constructed, would present a smooth and regular surface.” (8) That‘“the set-screw was an iron or steel screw that went through the edge of the cuff or collar and into a slot or notch in said shafting to hold the- said cuff or collar in its proper place. That if the said screw had been properly made, of the right size and length, it would have served its purpose perfectly, and the head of it would have been below the outer surface of the said cuff and down in the trench or groove in the said cuff. Said cuff was placed on said shaft just flush with the edge;' of the said cement wall on the side next to the dynamo, and this was the side of the wall from which plaintiff’s husband had to approach the said oiling places to oil the said piece of machinery.” (9) That “the said bolts holding the said cuff together were extended so far at each end as to be dangerous; for the reason that if any part of the clothing of ordinary kind worn by petitioner’s husband happened to come into contact with the cuff while the machinery was in motion, the rapid revolving shaft would cause the ends of said bolts to catch the clothing.” (10) That “the head of said set-screw protruded quite away-beyond the edge of the said cuff, and that said shaft while in operation made about two hundred revolutions to the- minute.” . (11) That “it was her husbandys duty to oil said machinery "when it was “in motion; and that while lie was so doing on the date aforesaid, the head of the said setscrew and the ends of the said bolts in the said cuff or collar came in contact with his clothing, and the shaft, being operated by electricity, was rapidly revolving as aforesaid, and caught up his clothing which he had on, and held him by this means and forced his body around as the shaft revolved, and struck his head and other parts of his body against the said cement wall and 'other parts of said machinery, and in this manner caused his death.” (13) That “it was negligence on the part of the defendant to have constructed said machinery as aforesaid, and in permitting it to so remain.”" (13) That “said machinery could have-been made perfectly safe: by an expenditure of not more than ten dollars — by placing guardrails along the outside of said cement wall, just a few inches beyond the said cuff or collar, which would have prevented any injury or danger to petitioner’s husband while in the discharge of his duty as oiler, and to others in going around said shaft and cuff. Petitioner alleges that the failure on the part of the said defendant to so place such guard-rails was negligence.” (14) The age and earning capacity of petitioner’s deceased husband is alleged.
    To the original petition the defendant demurred on the following grounds: No cause of action is set forth; no liability against, defendant is shown; no negligence rendering defendant liable is shown; it appears that the alleged injury was caused by the negligence of the deceased; it does not appear that the deceased could not have avoided the injury by exercise of proper care; it appears that the deceased had equal means with the master of observing the danger; there is no allegation that the master knew of the danger, or that the servant did not know of the danger or had not equal means with the master of knowing the danger. It also demurred specially to paragraphs 9 and 13 of the petition, “because it is not alleged that the construction of the machinery therein mentioned is not like that used in other plants of like nature and engaged in the same business, the defendant not being bound to furnish any certain particular contrivance. It also specially demurred to paragraph 10, in that it was not specific as to the distance the set-screw protruded. • The plaintiff thereupon filed the following amendment, adding at the close - of paragraph 7 the words: “It was the duty of the defendant so to construct its machinery as to make its operation attended with no unusual danger to the said husband of the plaintiff, Charles E. Helms, -while performing his duties in connection therewith. This was not done as defendant was bound to do, but, instead of the said cuif being properly put together, around the shaft in the manner it was made and intended should be, it was unskilfully and carelessly done; for the reason that one of the iron or steel bolts that held the two pieces of the- collar together was too long, and protruded beyond the outer surface of the collar from three eighths to one half inch; that plaintiff’s husband had only been at work at the said- place in the capacity of oiler but a few days; and the said machinery being in motion night and day, he had no opportunity of knowing its improper manner of construction; and that he had no notice given him of it, and, not being a skilled mechanic, did not know Tow it should be constructed; that plaintiff’s said husband could not by ordinary diligence have discovered the defect and danger; that the defendant had a mechanic whose duty it was to' see that the machinery was properly constructed, and it was not plaintiff’s husband’s duty; besides, it ivas the duty of the defendant to properly construct and keep in repair all its machinery, and to keep it in a reasonably safe condition; that defendant knew or ought to have known of the defective condition of the said machinery above described.” To the amended petition the demurrer was renewed, the following additional grounds being added; As to the statement in paragraph 5, that deceased “was incompetent to do so, which was known to the said defendant,” on the ground that tho allegation is a mere conclusion of the pleader and states no facts on which said allegation is based; as to paragraph 2, on the same ground; as to the amendment to paragraph 7, on the ground that it is confused, mixed, and not clear in meaning; as to the statement in this amendment that “it was the duty of the defendant so to construct its machinery as to make its operation attended with no unusual danger to the deceased,^ because it states a mero conclusion, with no facts upon which to predicate it; also as to that portion of the original petition which states that deceased had . been at work as an oiler but a few days, on the ground that the. number of days is not definitely stated; also as to the statement in the amendment, “that plaintiff’s said husband could not by ordinary diligence have discovered the defect and danger,” because it states a mere conclusion of the pleader; and as to the statement ■ “that defendant knew or ought to have known of the defective condition,” on the same ground. There' were-other grounds', but all of them are of substantially the same hature as these above set out. Upon the amendment being made; the court struck paragraph 13 ■of the petition and overruled the demurrer; and the defendant ex■cepts to this judgment. It also complains that the court erred in allowing the amendment!

      Blance & Tison, for plaintiff in error.

      Janes & Hutchens, contra.
   Powell, J.

In the case of Cedartown Cotton & Export Co. v. Miles, ante, 79, 58 S. E. 289, this court undertook to discuss andio elaborate the form and nature of a petition for the recovery by a •servant against his master of damages for personal injuries received in the course of the employment. The petition in this case .•seems to come up to the standard there set. In fact, if the pleadeT in this case had had the opinion just referred to before him, he ■could hardly have followed it with greater accuracy. The nature oí The servant’s employment, of the instrumentality causing tire injury, and of the defect which was the immediate cause, as well as the relation existing between these things as bringing about an actionable wrong, are carefully and definitely set forth. Matters of fact are set forth as such, while those matters of which the court will take judicial notice áre pleaded as legal conclusion; which is unobjectionable.

The petition states that the deceased was employed as an oiler, .and connects the employment with the injury, by alleging that in pursuance of the performance of his duty he was engaged at the time he was hurt, in oiling the defective pieces of the'machinerjc The duty of the' defendant to furnish reasonably safe machinery is alleged in general terms; and, as said before, this is allowable under the rules of good pleading. The instrumentality is definitely described, and the definiteness of description increases, as in-1 -deed it should, as it touches the questions of the relation of the instrumentality to the duties of.the servant, to the specific mode of the injury, to the exact hature of the defect, to the negligence of the master and the lack of contributory negligence on the part of The servant; for by alleging the presence of the journal and the oil lióles therein, it shows the relation of the instrumentality to the duties of the servant; by alleging the presence of a projecting setscrew capable of catching clothing, it shows the relation of the instrumentality to the exact mode of the injury; by alleging the presence of this projecting set-screw at a place where in the ordinary construction and arrangement of the machine it would not be expected to project, because of the groove into which it should fit snugly, it shows the exact nature of the defect; and from these same things the negligence of the master appears; and by showing the speed at which the shaft and collar revolved, it negatives the contributory negligence of the servant. The defect is set forth with certainty, and from the facts stated it appears that it was latent; also that it was the proximate cause of the injury.

As to the element of the master’s knowledge, the allegation is “that the defendant knew or ought to have known of the defective condition of the machinery above described.” Taken in connection with the other allegations of the petition, this is sufficient. As was said in the Miles case, supra, “if constructive knowledge be charged to the master, and the facts stated in the petition make a case where by law the duty of knowing is imposed upon the master, the resulting legal conclusion ‘that he ought to have known’ is not subject to objection.” Among the absolute non-delegable duties of the master are those of furnishing reasonably safe machinery, and of making inspection for the discovery of defects in those instrumentalities within the range of which the servant is expected to come. Dennis v. Schofield Co., 1 Ga. App. 489, 57 S. E. 925; Moore v. Dublin Cotton Mills, 127 Ga. 610 (3), 56 S. E. 839; Southern Cotton Oil Co. v. Dukes, 121 Ga. 791, 49 S. E. 788; Babcock v. Johnson, 120 Ga. 1034 (6), 48 S. E. 438; McDonnell v. Central Ry. Co., 118 Ga. 86, 44 S. E. 840. Hence, by law, the master ought to know of such defects; and it therefore follows that, the preliminary facts necessary to raise the duty having been set forth in detail, the statement of the legal conclusion is unobjectionable. Pierce v. Seaboard Air-Line Ry., 122 Ga. 664, 50 S. E. 468.

The servant’s lack of actual knowledge is not directly alleged, but this element is inferentially shown from the facts stated; and in the absence of a more specific demurrer, pointing out the fact that this is pleaded inferentially, and not directly, we shall hold the petition sufficient. “Demurrer, being a critic, should itself be free from imperfections.” Special demurrer must put its finger upon the exact point of weakness. The allegations are: "That plaintiff’s husband had only been at work at the said place in the capacity of an oiler but a few days; and the said machinery being in motion night and day, he had no opportunity of knowing of the improper manner of construction; and that he had no notice given, him of it;” and "could not by ordinary diligence have discovered the defect and danger;” and this, in connection with the fact that the shaft revolved at the rate of two hundred revolutions per-minute, which would naturally render the defect ordinarily unobservable, makes a circumstantial case of lack of knowledge. As. the Supreme Court says, through Justice Cobb, in the McDonnell case, 118 Ga. 91, 44 S. E. 843: “Want of knowledge on the part of the servant as to the defects in the machinery may be shown by circumstances as well as by direct evidence. Of course, in a. case like the present, where the servant loses his life, it is impossible in a suit by his widow to show by direct evidence this want, of knowledge. If the circumstances are such that it can he reasonably inferred that the servant did not have knowledge, this inference from the facts sufficiently establishes want of knowledge.” As a nicety of pleading, it is better to allege the lack of actual knowledge directly, even though the proof be circumstantial-However, in the light of what we have just said, we hold that the-petition sufficiently alleges a lack both of actual and of constructive knowledge. As to the element of constructive knowledge, the statement in Southern Cotton Oil Co. v. Dukes, 121 Ga. 787, 40 S. E. 788, is pertinent: “As a general rule, a servant is under no obligation to inspect the appliances about which he works, or that part of the plant by which his safety may be affected, for the purpose of discovering concealed dangers which would not be disclosed by superficial observation.” See also Southern Cotton Oil Co. v. Gladman, 1 Ga. App. 259, 58 S. E. 249.

Since in this case the servant met his death not from the obvious danger of the rapidly-revolving shaft, hut from the concealed danger of a projecting set-screw, the case is easily distinguishable from the case of Commercial Guano Co. v. Neather, 114 Ga. 416, 40 S. E. 299, and McDaniel v. Acme Brewing Co., 113 Ga. 80, 38 S. E. 404. It must be remembered too, in this case, that the projecting set-screw was located in a place where a servant relying upon the prudence of the master would not ordinarily anticipate it. Indeed, while the construction of the machine seems to have necessitated the presence of a set-screw in this collar, yet since it was also necessary to oil the adjoining hearing, the maker of the machine, obviously anticipating the danger that would exist by leaving the head of the screw exposed, had arranged a groove in the collar, into which the set-screw might fit without protruding. The negligence consisted not in the use of a set-screw, but in leaving it protruding, instead of protecting it by placing it down within the groove. See, in this connection, Labatt, M. & S. § 77, and cases cited in the footnote.

The objection that the petition does not allege that the machinery was not equal in kind to that in general use is not well taken. In the first place this fact does inferential^, if not absolutely, appear from the allegations made. Also, under the Civil Code, § 2611, the master is bound to exercise ordinary care “in furnishing machinery equal in kind to that in general use, and reasonably safe for all persons who operate it with ordinary care and diligence.” Taken thus conjunctively, these two clauses are measurably accurate in stating the rule upon this subject. In cases involving the law of master and servant we must not forget, in applying the two sections of our Civil Code, §§ 2611 and 2612, that they are not statutory in origin; they are mere codifications of particular phases of the law as applied by the Supreme Court in certain reported cases; and for the most part rest on statements culled in these cases from Wood’s Law of Master and Servant. As we said in King v. Seaboard Air-Line Ry., 1 Ga. App. 88, 58 S. E. 252, codification has given them no element of exhaustiveness, but the whole law of master and servant exists just as it did before these sections appeared in our code; and there are many phases of this branch of the law not covered by these two code sections. We look to the general law as'limiting, explaining, and extending their meaning. The fact that the machinery furnished by the master is equal in kind to that in general use is a circumstance tending to ..show that he has exercised ordinary care in that respect; but after all, there is the further test that it must be reasonably safe for all persons who operate it with ordinary care.

With the exceptions of some regrettable lack of unity in form and order of arrangement, a rhetorical rather than a substantial blemish, the petition is well drawn; as amended it .sets out a clear, definite cause of action; and the court properly overruled the demurrer.

The amendment to the petition was properly allowed, over the objection that it introduced a new cause of action. King v. Seaboard Air-Line Ry., supra, and cases therein cited.

Judgment affirmed.


source: Caselaw Access Project

author: Powell, J.

license: Public Domain

text:
    445.
    STILES v. SHEDDEN.
    1. In an action upon a contract, the defendant is entitled to open and conclude when, by his pleadings, before the introduction of any evidence, he admits a prima facie case for the plaintiff; that is to sev, such a. case that if no evidence were introduced, the plaintiff would be entitled to take judgment for the full amount authorized by his petition.
    2. The title to a negotiable promissory note indorsed in blank by the payee may thereafter pass by delivery to subsequent holders.
    3. Instructions, inapplicable to the pleadings and the evidence, and therefore tending to confuse the jury, should not be given.
    4. The court should not single out one of several issues and instruct the jury that it is the main issue; nor should he instruct them that this issue is to be determined by a consideration of the evidence of the witnesses who have testified on the stand and by interrogatories, where material documentary evidence has been introduced upon the question.

      5. Instructions tending to mislead the jury as to the true nature of the .defense set up in the case should not be given.
    6. Where a witness has stated that a note was turned over to another for a specific purpose, he may, as against the objection that it is opinionative, testify that this purpose has ended.
    Complaint, from city court of Cartersville — Judge Eoute. April 4, 1907. , '
    Argued June 25,
    Decided July 10, 1907.
    Shedden sued Stiles upon a promissory note for $500. The note was signed by Stiles, payable to himself or order, and indorsed by himself and George T. Hodgson, both the indorsements being in blank. It also bore the indorsement, “Eor collection account of English-American Loan and Trust Co., Eoby Eobinson, Cashier.-' The defendant’s answer admitted the execution of the note and that the same was transferred by indorsement to Shedden. He set up, in. defense, that the note was an accommodation paper, wholly without consideration.; that it was obtained by Hodgson for Shed-den at Shedden’®. instance and- request, with the sole view that ¡Shedden might use ic as collateral; that these facts were fully known to Shedden at the time he took the note; that he paid nothing for it; that Shedden, recognizing this to he the fact, had never, prior to the bringing of the suit, presented the note for payment or claimed that Stiles owed him anything on it, though nearly ten .years had elapsed in the meantime; that the note had long since served its purpose and would have been cancelled and returned, but for the fact that the parties thereto were under the impression that it had been destroyed. The defendant therefore alleged that he was not indebted to Shedden on the note; and that the latter was not a bona fide holder of the same for value. Upon this plea the defendant claimed the right to open and conclude. The court ■overruled this demand and allowed this privilege to the plaintiff. This ruling is the basis of one of the exceptions taken in the record.
    The oral evidence was conflicting; that of the defendant tended to show that Shedden was the general agent and Hodgson the local agent of the Mutual Life Insurance Co.; that Hodgson borrowed money from Shedden, and Shedden borrowed in New York; that Hodgson, in addition to certain notes which he put up as collateral for the loan made by Shedden to him, as an accommodation to Shedden executed his notes in blank to the sum of $100,000, and turned them over to Shedden in order that the latter might borrow money on thepi; and that at Shedden’s instance he also, for the same purpose, obtained notes from his friends, getting them from Stiles, his partner, from Mure, his brother-in-law, Hodgson, his nephew, and Nicholson, his office boy; and the note in suit was of this number. When business connection between Hodgson and Shedden closed, all of these notes, except the one in suit, were returned by Shedden; by oversight the one in suit was not returned. Shfedden, as a witness in his own behalf, denied all this and said that he had bought this note from Hodgson and had paid him $500 for it. A large amount of letters and other documentary evidence was introduced by the defendant, tending strongly to support his plea. We mention this fact because exception is taken to a charge of the court tending to eliminate this evidence from consideration by the jury. The jury returned a verdict for the plaintiff.
    In the motion for a new trial the plaintiff in error assigned error upon the following instructions of the court to the jury: (1) '“The plaintiff contends, that he bought’ this note from one George lT. Hodgson, and that he paid value for it according to its terms; in other words, that the note was discounted to him and that he took it up, paying value for it; that it was not a mere accommodation to him at all; that he did not receive it that way, and did not use it that way. You look to the evidence, gentlemen, and see what the plaintiff contends, and examine the note, which will be before you, and see if there is any evidence that it was used by the plaintiff at all; and I charge you that as this is a negotiable paper, if he had used it it would have been necessary for'him to have made an indorsement upon the note.” (2) “I charge you that every transferor of a negotiable instrument, whether by indorsement ■or delivery, warrants (unless otherwise agreed by the parties) that he is the lawful holder and has a right to sell, that the instrument is genuine, and that he has no knowledge of any facts that prove the instrument worthless, either by insolvency of the maker, payment, or otherwise.” (3) “I charge you that the title of the holder of a note can not be inquired into, unless it is necessary for the protection of the defendant, or to let in the defense which he seeks to'make. I charge you that an indorsement or’assignment of any bill, bond, or note, when' the same is sued on by the indorsee, heed not be proved, unless denied on oath.” (4) “I •charge you, gentlemen, that the main question for you in this ease is this: Did the plaintiff pay Hodgson a valuable consideration for this note? And in determining this you will’look to all the •evidence as it comes to you from.- the witnesses, and the evidence presented by interrogatories.” (5) “This being a negotiable instrument, if th'is plaintiff came into possession of it for a valuable •consideration, before it was due, and without any notice of any dishonor, he would be entitled to recover. I charge you that in support of the defendant’s contention he must show, by a preponderance •of the evidence, that Shedden did not pay Hodgson a consideration for the paper.” Other portions of the charge are excepted to, but ■as this court finds no error in them, it is not deemed necessary to' ■set them out here.
    Another ground of the motion for a new trial complains that the ■court excluded from the jury. the. answer of the witness Hodgson, as iollows: “This note most assuredly has served the purpose for which it was given, and it should have been returned to me when I made demand upon Mr. Shedden for the return of all my collateral notes; at which time most, and, as I thought, all of them had been returned; and this one was included in my demand for their return.” Other exceptions taken to rulings upon .evidence are not-considered material, There is in the motion also a ground of newly-discovered evidence; but as the affidavit as to the diligence used by client and counsel to discover this evidence before the trial is not sufficient (for it states the fact of such diligence as a mere matter-of conclusion, without giving any facts upon which the conclusion is based), this court does hot consider it.

      Thomas W. Milner & Sons, for plaintiff in error.

      Paul S. Etheridge, Joseph M. Moon, contra.
   Powell, J.

(After stating the foregoing facts.)

Under the pleadings the defendant took the burden of proof;, and was entitled to the opening and conclusion. In actions ex contractu the test is: if under the pleadings the plaintiff would be entitled to a judgment in. his favor for the full amount authorized by his petition, without the introduction of any proof, unless the defendant.by his evidence can affirmatively avoid the prima,, facie case admittedUn plaintiff’s favor, the defendant is entitled to open and conclude. In this case the defendant having admitted the execution of the note and the transfer to the plaintiff, he admitted a prima.facie .case in the latter’s favor. The rule does not-contemplate that the defendant shall admit an absolute case for-his. adversary; only a prima facie case.

The instruction set out above and numbered 1 is so manifestly erroneous that we attribute it to a lapsus lingua. Of course a negotiable note already indorsed in blank by the payee .may pass, by delivery; and in.the case at bar, Shedden could have used the-note .without putting his indorsement thereon. Heard v. DeLoach, 105 Ga. 500, 30 S. E. 940. Indeed, under the evidence we can uot reasonably account for the subsequent indorsement of the English-American Loan & Trust Co. upon any other theory than that Shedden passed the note to it by delivery. We can readily appreciate how harmful this instruction could have been to the defendant, coming as it did at the beginning of the charge; for one of the defendant’s contentions was that Shedden. took this note as. accommodation paper in order that he.might obtain, money on-it, — a contention strenuously denied by the plaintiff; and this instruction practically settles the matter by informing the jury that Shedden could not have used t'he note without, putting his indorser ment on it; whence would arise the conclusion that he had not used it, and from that, naturally, the inference that he had not obtained it for that purpose.

The instructions numbered 2 and 3, while in the abstract correct statements of law, were inapplicable to the pleadings and the evidence,- and therefore tended to confuse the jury. It is-error to give such instructions. Culberson v. Alabama Construction Co., 127 Ga. 599, 56 S. E. 765, and the long line of case cited in 7 Michie’s Dig. Ga. Rep. 570, et seq.

The instruction numbered 4 is erroneous for two reasons: first, because it singles out one of the issues and gives judicial weight to it by characterizing it as the “main question,” especially so, when under the pleadings and the evidence this is not necessarily so; for although the plaintiff might have paid a valuable consideration for the note, if he took it, with notice of its true consideration, or rather lack of consideration, he would not be entitled to the protection of an innocent holder; then, the instruction eliminates from the consideration of the jury all of the documentary evidence introduced. Lamar v. Glawson, 38 Ga. 252; Bowden v. Achor, 95 Ga. 244 (8), also 245 (11), 22 S. E. 254; McLean v. Clark, 47 Ga. 24; Myers v. State, 97 Ga. 76, 102, 25 S. E. 252.

As to the instruction numbered 5, the error is that it overlooks the fact that notice of an original lack of consideration, and not notice of dishonor, was the contention of the defendant.

The evidence of Hodgson, set out above, was improperly excluded. He had stated the purpose for which the note had been delivered to Shedden; it was not opinionat-ive for him to state that this purpose had ended. It is strenuously urged 'upon us that the judgment should he reversed upon the facts. While we must concede that the verdict is apparently strongly contrary to the weight of the evidence, yet this is a matter which addresses itself to the jury and to the trial judge, not to this court. We look only to see if there is any evidence- to support the verdict.

Judgment reversed.


text:
    451.
    Sikes et al. v. Brown, administrator.
    Complaint, from city' court of Griffin — Judge Iiammond. March 20, 1907.
    Argued June 25,
    Decided July 10, 1907.

      T. E. Patterson, for plaintiffs in error. Lloyd Cleveland, contra.
   Powell, J.

1. Grounds of a motion for a new trial' in which error is as» signed upon the admission of evidence will not be considered by this court, when the evidence objected to is not set forth, literally or in substance, nor attached to the motion as an exhibit. Hicks v. Webb, 127 Ga. 171 (5), 56 S. E. 307; Lewis v. Hutchinson, 127 Ga. 790 (3), 56 S. E. 998, and cit.; Waldrop v. Wolff, 114 Ga. 610 (2), 40 S. E. 830.

2. The verdict is well warranted ,by the evidence; and no reversible error appears. Judgment affirmed.


author: Hill, C. J.

text:
    452.
    Epperson v. Kitchens.
    Certiorari, from Banks superior court — Judge Brand. March term, 1907.
    Submitted June 25,
    Decided July 10, 1907.

      A. C. Brown, for plaintiff in error.

      Martin & Stevenson, A. J. Griffin, contra.
   Hill, C. J.

1. After the petition for certiorari has been sanctioned and the answer of the magistrate filed, and such answer supports the allegations of the petition, the certiorari will not be dismissed because of a defect in the affidavit of the plaintiff in certiorari, verifying the petition.

2. Where the superior court, on certiorari, set aside a verdict rendered in a justice’s court, and ordered a new trial because “the ends of justice require it,” the voice of the evidence demanding such verdict, to bo heard in this court, would have to be very clear and very loud.

Judgment affirmed.


text:
    456.
    Paschal & Son v. Moline Jewelry Company.
   Powell, J.

A judgment was rendered in a county court against the individual members of a partnership; an appeal was entered in the name of the partnership by its attorney at law, and the sole surety wras one of the partners against whom judgment'had been rendered., Meld, that the appeal was a nullity, was not amendable, and was properly dismissed on motion. Gordy v. Robertson, 26 Ga. 410, and cases cited in the footnotes; Fisher v. Pearson, 1 Ga. App. 517, and cit., 57 S. E. 1018.

Judgment affirmed.

Appeal, from Putnam superior court — Judge Lewis. March 18, 1907.

Submitted June 25,

Decided July 10, 1907.

W. T. Davidson, for plaintiff in error.

Turner & Adams, contra.


author: Russell, J.

text:
    158.
    OHLEN v. ATLANTA & WEST POINT RAILROAD CO.
    1. A common carrier, sued on its common-law liability for loss or injury of goods received by it for transportation, may relieve itself of liability by showing that the goods were damaged before it received them. Where it does not appear either that the carrier received the goods as in bad order or that they were in fact in bad order when received, the presumption is that .they were in good order, and the burden of proof is upon such carrier to show that it was free from negligence, and that its negligence did not cause or contribute to the damage. '
    2. Where there was evidence of the delivery by the carrier, in a damaged condition, of an entire shipment, and that the goods were originally shipped in good condition, and evidence as to the amount of damage, authorizing the recovery of a larger amount as damages on the entire shipment, it was error to direct a verdict for only a portion of the damaged goods, as to which the defendant conceded liability.
    Action for damages, from city court of Atlanta — Judge Reid. November 27, 1906.
    Argued February 26,
    Decided July 18, 1907.

      Moore & Pomeroy, for plaintiff.

      Dorsey, Brewster, Howell & Heyman, for defendant.
   Russell, J.

Ohlen filed suit in the city court of Atlanta against the Atlanta & West Point Railroad Company, to recover for damage to 109 kegs of fish shipped from St. Andrews, Florida, to Atlanta, Georgia. This suit is based upon two counts: first, the statutory action against the last of the connecting lines of carriers; and secondly, the common-law liability. The plaintiff insisted only upon the common-law count; and hence the count based on section 2298 of the Civil Code will not be considered. The -court directed a verdict for $8 in favor of the plaintiff. The plaintiff excepted, and brings the case to this court for review. There are two assignments of error. The first assigns error upon the overruling of plaintiff’s objection to a freight bill “dated May 4, bearing the name of F. EE. Allen, covering car 9077, 109% kegs -of fish, marked weight 8750 pounds, with $51.20 freight, marked paid on May 14, 1904, and bearing the signature of S. C. Magill, agent;” the objection made by the plaintiff being, that the evidence was immaterial, irrelevant, and illegal, and that it was an admission by the defendant in its own favor. The second assignment of error excepts to the ruling of the court in directing the verdict, over the plaintiff’s objection. We shall consider the second assignment first, because the principles involved are controlling in the case. While the verdict was directed for the plaintiff, it was,, in effect, a verdict directed for the defendant; because the defendant conceded that one keg was lost, and one keg so damaged as to be worthless, and tendered $8 and court costs 'in court.

So far as insisted on by the plaintiff, the petition alleged, that on or about the last day of April, 1904, he bought and had shipped to him from St. Andrews, Florida, to Atlanta, Georgia, 109 quarter kegs of fish, which were delivered to him by the defendant in Atlanta on or about May 14, 1904; that when shipped, the fish, were in good order,. and not in a damaged condition, but when delivered they were decayed, unmerchantable, and in a badly damaged condition, and that a portion of the' fish (one-fourth keg) was never delivered. He charged, that the time consumed in conveying the fish was unreasonable and unnecessary, and that this fact contributed in a measure to their damage; that this 'shipment of fish should have arrived in Atlanta on or about May 4, 1904, and that the defendant wrongfully and negligently held and refused to deliver the shipment until on or about' May 14,. 1904; which fact, he charged, contributed to their damage.

The evidence for the plaintiff showed, that one Ponder, as his broker, received the bill of lading from him and'sold the fish to J. J. & J. E. Maddox while they were in transit. When the bill of lading arrived, about the first of May, Ponder telephoned to the office of the defendant company at Atlanta and inquired for the fish, and was told that they were not there. He then called on the cashier at the office of the Atlanta & West Point Eaüroad, about a week after he received the bill of lading, and was told that the fish were not there. Two ór three days later he again made inquiry and was told that they had not arrived. He then went into the depot and made a personal search and found the fish, marked “F. X. Ohlen.” This was between the 8th and 10th of May. After the fish were found, they were not delivered until the 14th of May; for the reason that the defendant company insisted on collecting a larger amount of freight than that called for in the bill of lading. The fish were sold to Maddox at $3.25 per keg, though the market price was more than that. After the fish were delivered to Maddox it was discovered that they were rotten and of no value. Maddox refused to pay for them, and tendered them back. The tender was waived because it wás apparent that the -fish were worthless. This witness further testified that a shipment of fish from St. Andrews, Florida, should reach Atlanta within three or four days after shipment. It further .appeared in the evidence that permitting fish of the character in question to sit in a hot warehouse for a number of days would cause them to. decay. It appeared, from the testimony of Mr. Maddox, that there, was no brine in the kegs when they were opened. He also noticed Ohlen’s name on them, and could not say they were only marked with the initials “F. X. 0.” He also testified that the market value of the fish between the 1st and 15th ■of May was $5 a keg. The agreed price was $3.25 a keg.

Under a notice to the defendant the bill of lading was produced and introduced in evidence for the plaintiff, as follows: “Pensacola, St. Andrews and Gulf Steamship Co. Consignee’s receipt. Original. Deceived in apparent good order from H. W. Steinholser of date April 29, 1904, at St. Andrews, Fla., consigned to F. X. Ohlen, Atlanta, Ga., marked F. X. O., 104% kegs fish. Rate 63c per hundred pounds. 'Weight 8750. [Signed] C. Wishenburg, Agt.” (Endorsed) “Deliver to bearer, May 5, 1904. Frank X. Ohlen.” Plaintiff also introduced a letter from Ponder to Magill, agent of the Atlanta & West Point Eailroad, as follows: “We hold B/L for. 109 packages salt fish, which from marks on package we found out arrived here on 4th inst. We inquired at the depot in'person once or twice, and over the phone, if gopds had arrived, and were informed- in the negative. Oh the 10th inst., we searched for the goods through your depot'and found them there. Pate of freight on B/L is endorsed 63c per cwt., and we have in our possession letter from E. P. Cobb, G. F. A. of Pensacola, St. Andrews & Gulf Steamship Co., who issued B/L giving rate from Cromston, Fla., to Atlanta, Ga. of 63c. We have been refused delivery of the shipment-unless freight charges in full, which is more than 63c per nwt., be .paid. Weather is getting hot and fish are being damaged every day they set in warehouse, and this is to put you on notice that we shall demand of your road damages, whatever they might be, and if the freight charges are not adjusted at once we will reject the shipment entirely and bring suit for amount of shipment.” Also' letter from S. E. Magill, agent, to C. B. Ponder Company, of May 14, 1904, as follows: “Confirming my telephone 'message to your bookkeeper this a. m., this is to'notify you that we are ready to'protect rate of 63c per cwt. on salt fish from St. Andrews, Fla., to Atlanta, Ga. Will you 'kindly send down and get shipment, which is at our depot ?” ■ According to the testimony, the fish were put up in brine, in little quarter barrels with wooden hoops around them. They were put up to keep, and in cool weather ought to keep sixty or ninetjr days. “They would go to pieces quicker if stored in a warm pláee for any length of time.” It was also in evidence that, so far as general appearance was concerned, the kegs weTé apparently in good condition. And the testimony showed that if there was a leakage, i't would make the kegs lighter; though there was no evidence that the ke'gs were weighed before delivered. ' • .

In'our opinion the exception to the verdict directed by the court is well taken. "Considered by itself, the testimony in behalf of the plaintiff entitled him to a recovery for the market value of thé entire shipment of 109 kegs; and considered in connection with the testimony for the defendant, the most that can be said is that an issue of fact was presented, which should have been subinitted to the jury. We apprehend that our learned brother of the trial bench was' controlled in his decision by the ruling announced in Evans v. A. & W. P. R. Co., 56 Ga. 502, in which it was- held that a receipt for corn as in apparent good order, given by an agent of a steamboat, which corn was to be carried by water to Memphis and thence by rail to LaGrange, furnished no evidence that the defendant received the corn in good order, or apparent good order, or 'as in good order. In'our judgment the decision above cited has no application whatever to 'the case at bar, although there is a similarity as to the facts. In the Evans case it appears that the action \kas based upon '§'2084 of the'code, now §2298, and the decision is'based entirely upon a strict construction of that statute, Judge Jackson,' in rendering the opinión, saying, “.Our statute, §2084 of the code, makes the last company of connecting railroads liable; it is silent in respect to any connection with steamboats.” But even in that case it was held that if it had been proved that any of the connecting railroads received the c<3rn in good order, or as in good order, “then the presumption would have arisen that the corn remained in that condition of good order from connecting road to connecting road until it reached defendant, and hence that it was received by plaintiff as in the good order in which it left the other road, and such presumptive proof would have been sufficient to carry the case to the jury, and, unless rebutted, to have authorized a recovery from the defendant. Such seem to be the authorities; and principle and practical good sense and the convenience of the public sustain them. But this case breaks down from the fact that there is no positive proof that the defendant received this corn in good' order or as in good order, and no presumptive proof thereof by proof that any road with which it connected so received the corn, nor. any proof that it received the corn froni/ any other carrier.”,. Under the evidence submitted by the defendant in the form of. the freight receipt, had the plaintiff insisted on his statutory remedy under the Civil Code, §2298, his case would not have broken down, as Judge Jackson termed it, for lack of proof that a road5with which it. connected received the fish in good order, or that it received the ■ fish from another carrier. It must be borne in mind, however,' that the statutory action predicated on §2298 was expressly abandoned.by the plaintiff. Perhaps it was abandoned on account of the decision in the Evans case; but in" any event, as that case was brought under the provisions embodied in §2298' (which was formerly §2084 of the code), the ruling in the Evans case is not in point.

Where the action is based on the common-law right of action, the carrier is bound, if he receives goods in good order, ,to deliver them in good order, whether there be a bill of lading or no bill of lading, a connecting carrier or no connecting carrier. The general rule as to the common carrier’s liability for goods in his possession as carrier (and regardless of contractual exceptions) is that the carrier is liable for all loss or destruction of or injury to such goods, not occasioned by the act of God or the public enemy. Therefore, where .the loss is not due to the excepted causes, proof of negligence is immaterial, and the carrier can no'-, escape liability by proving reasonable care and diligence. Under the common law the carrier is absolutely liable to deliver the goods in the condition in which it receives them, with only the exception stated in the rule above. This general rule is stated • and illustrated by Judge Nisbet in the early case of Fish v. Chapman, 2 Ga. 349. In the more recent development of the rules of the carrier’s liability, it has been held that he is not liable for loss or damage due to the intrinsic qualities of the goods carried. But this exception is not included in the exception made for the ‘‘act of God” in the common-law rule. The act of God, as expressive of a cause of loss or damage, means a casualty not due to human agency, — not only not due to it, but one which is no way .contributed to by human agency.

With the rule of common-law liability settled, it is clear that the-question of fact in this case is, what was the condition pf the fish at the time the defendant received the kegs containing them ? The evidence is undisputed that the fish were received in a damaged and worthless condition from the defendant. By this proof the' plaintiff established the fact that lie had not contributed to the injur3r, and shifted to the defendant the burden of showing responsibility for the bad condition of the fish to be chargeable to some one else, either a connecting carrier or the shipper, where it was shown that the goods were recently in good condition. The carrier had the right to refuse the shipment when tendered to him, whether by the original shipper or by a connecting carrier, if in bad-condition; to inform himself of the condition and nature of ihe goods before receiving them for shipment; and he had the best opportunity of furnishing information as to who was responsible for the unsound or damaged condition of the shipment. It ■can be presumed that the fish were at one time sound, and whether the defendant received them from the shipper or from a connecting carrier, if a carrier delivers them in bad condition from hi 5 hands, the presumption will arise that the damage accrued whib in his custody; for the reason that a carrier is hot required to transport articles unfit for shipment or in bad condition, without at least being able to prove that fact. On the other hand, in most instances all that the consignee can prove is the condition of the goods at the time he received them, and the fact that they came from’the custody of the carrier. For this reason, we think that the plaintiff made a prima facie case when he proved that the goods had been in possession of,the defendant as a carrier from Nay 4 to May 14, and, when delivered by the carrier, were worthless. It then became the duty of the carrier to show that the goods were in bad condition when delivered to him; and upon failure of such proof, the presumption that they would not have been received by him except in proper condition to be shipped is not rebutted, and the carrier becomes liable for the damage. Wo are aware that this rule imposes a burden upon the carrier for hidden defects in some cases, but the carrier will still be protected by the rule which relieves from liability where the injury or destruction of the shipment is caused by the act of the shipper, or by violation by the shipper of reasonable rules made by the carrier, or where there is a fraudulent concealment of the nature or value of the goods, or where the shipper dissuades the carrier from inquiry and thereby misleads the carrier as to the nature and value of the shipment, or where the goods are insufficiently packed, if the defect is not known to the carrier and the -carrier is without fault.

The Supreme Court in the case of Breed v. Mitchell, 48 Ga. 536, fully justifies our holding in this case. Judge McCay, delivering the opinion for the court, says: “Whatever may be the rule as to the presumption of the condition in which goods are received, it is certainly true that the carri|r will be presumed to have received the goods in good order for shipping, that is, that they were in such condition that they could be moved without loss. A car- " Tier is not bound to receive goods which can not be moved without loss. A man may have a right to compel'a carrier to ship damaged goods, but he can not compel him to ship goods that are so badly packed as that they can not be transported. At any rate,- it is but a fair presumption that when the carrier got the goods they were in such a condition as that they were capable of being transported.” And upon the same principle we hold that if a carrier can be compelled to ship damaged goods, it is his duty to know it. He is best prepared to prove it, and it is so out of the ordinary rule of business transactions that, in the absence of proof that he did receive the goods in damaged condition, it is fair to presume that he received them as in good condition, if not actually in good condition. It is in evidence in this case that the goods were actually received from a connecting carrier, the Western Eailroad of Alabama, and carried in the same car to Atlanta, by the defendant; and as said by the Supreme Court, in Paramore v. W. R. Co., 53 Ga. 386, “if the carrier who receives them finds that they are not in good order, — that damage has already occurred, — he can protect himself. It might be his duty to receive them in such order and to-deliver them, — that is, he may be compelled to receive even damaged goods, — but he is not bound to receive them when they are so badly packed that they can not be received without loss: Breed v. Mitchell, 48 Ga. 533. So the defendant was not bound to receive these cars from the Atlanta & West Point Eailroad with the-hogs so crowded that they were in danger from suffocation. If it-did, it made the act of that road its own act and was bound for the damages resulting from it. And the burden is on it to show' whether the suffocation occurred before or after its receipt of such-cars.” In' this case - the car containing the goods was received by the Atlanta & West Point Railroad Company from the Western. Railroad of Alabama instead of being received by the Western Railroad of Alabama from the Atlanta & West Point Railroad Company as in the Paramóte case, and the shipment is fish,, whereas hogs were being carried in the case cited; but the rule must be the same. The goods in each case. were destroyed, so-far as practical use was concerned, and the burden is on the carrier delivering the goods to show whether the injury occurred before or after its receipt of the shipment. It is true that the-action in the Paramore case was based on § 2084 of the code, but that fact would not vary the sound reasoning upon which the presumption of receipt in good order is based. The court further proceeds to say, that if the goods be in bad order or damaged, any road can so specify in its receipt and be protected; and that if' a carrier can protect himself against liability for the receipt of goods in bad order — in an unmerchantable condition — “at least the burden is on him of showing that it was not by his default or his own negligence . . that the injury was caused.”

While this action, so far as recovery is concerned (plaintiff having- abandoned the first count), is not based upon §2298, still, as; a matter of fact, it appears from the receipt offered by the defendant that the goods were delivered in good order by the Louisville & Nashville Railroad Company to the Western Railroad of Alabama, and that road, without change of cars, delivered the goods to the defendant company. So that if we consider the goods in the light of the receipt, they must be presumed to have been in good order when received by the defendant, and the burden is shifted to the defendant to show the contrary. Furthermore, the bill of lading issued by the initial carrier,.the steamboat company, is in evidence, and recites that the goods were received in good order. And in Bell v. W. & A. R. Co., 125 Ga. 512, 51 S. E. 532 (a case based upon the common-law liability of the carrier), it is held that “the bill of lading issued by the initial carrier plays an important part in the plaintiff’s case, whether the plaintiff relies upon the count . . growing out of the breach of duty arising under the contract, or on the count charging liability on the part of the defendant under the Civil Code, § 2298, as being the last connecting carrier who received the goods as ‘in good order.’ In the first instance, though the consignee be not a party to a contract of carriage between a railroad company and a shipper, the consignee may make proof of such contract with.a view to showing that the company became liable to him for a failure to comply with its legal duty as a common carrier.” And in the same case (p. 513) it is held, that “when a connecting carrier who has completed the transportation and delivered the goods to the consignee in a damaged condition is sued for the .loss in value, upon proof that the initial carrier received'the shipment in good order, the jury have the right to infer that they continued in that condition down to the time of their delivery to the carrier making the delivery to the consignee, and that the injury or loss occurred while in his. possession. . .. If nothing more had appeared than that the consignor delivered the cabbages to the initial road in good order, the plaintiff would have shifted the burden on the defendant company of showing that it was not responsible for the damaged condition . . when delivered.”

The cases of Henry v. Central R. Co., 89 Ga. 815, 15 S. E. 757, and W. & A. R. Co. v. Exposition Mills, 81 Ga. 529, 7 S. E. 916, 2 L. R. A. 102, sustain our holding, that where a railroad company is sued on its common-law liability for damages to goods delivered by it in a damaged condition, the presumption arises that it received the freight in good order; and that this presumption must be rebutted by proof. 'In Henry’s case, cited above, it 's held that where it does not .appear either that the carrier received the goods, as'in.bad order or. that they .were in fact in bad order when received, the presumption is that they were in good order. Hutchinson on Carriers (3d ed.), § 1348, is authority for the proposition 'that the ]oill of lading issued by the initial carrier is competent evidence to establish the condition of goods at 'the time of their 'delivery to such' carrier, and that where goods are received as in good order by the. initial carrier, the presumption is that thé goods remained in the same good condition when they came into the possession of the carrier sued. Section 2298 of the Civil Code has reference only to railroads, and consequently the bill of lading issued in this case by the steamboat company would not have been •competent evidence had the' count for the statutory remedy been Telied on; but as only the count based on the common-law liability of the defendant was insisted upon, the bill of lading issued by tyhe steamboat company, the initial carrier, was properly admitted. Its contents established the fact that the goods were delivered by the consignor in good order, and certainty, in connection with the other evidence in the case, raised the presumption that the defendant, the Atlanta & West Point Railroad Company, received them in good order. This presumption, unless rebutted, entitled the plaintiff to a recovery; and consequently it was error to direct a verdict for an amount so small that it amounted to a verdict for the defendant. • Judgment reversed.


text:
    198.
    KAMINSKY v. HORRIGAN, sheriff.
    1. The obligation of a replevy bond, filed with an affidavit of illegality, is to redeliver the goods at the time and place of sale.
    2. The lien of a judgment obtained more than four months prior to the filing of the' petition in bankruptcy is superior to the adjudication in bankruptcy; and the adjudication of the principal in a replevy bond to be a bankrupt does not relieve the surety from the obligation of his bond, especially where such surety takes no step to bring such lien to the attention of the bankrupt court.
    3. Where property is levied upon and it is replevied, the principal or surety must show why the identical property levied upon is not delivered. And where such suit is brought upon such bond, the burden of proof is upon the defendant surety, and not upon the plaintiff, to show sufficient reason why such property is not produced.

      Action on bond, from city court of Savannah — Judge Norwood. January 12, 1907.
    Submitted February 27,
    Decided July 18, 1907.

      Osborne & Lawrence, E. H. Abrahams, for plaintiff in error.

      George W. Owens, contra.
   Russell, J.

On November 5, 1903, Horrigan, sheriff of the-city court of Savannah, levied an execution in favor of Max Ripps for the sum of $192.26, and costs, upon the stock of goods of one T. Berendt, the return of the levy being as follows: “On and by virtue of the within execution I have this day levied upon the following property belonging to one I. Berendt: the stock of goods now in the storehouse kept by said Berendt on the southwest corner of York and East Broad streets, Savannah, Georgia.” Berendt contested the levy by affidavit of illegality, and gave a forthcoming bond for the property, with Kaminsky, plaintiff in error, as surety on the bond; the words of description of the property replevied, employed in the bond, being the same as those used in the levy. The affidavit of illegality was filed on December 15, 1903, and the bond was executed on the same day. The condition of the bond was such that should Berendt deliver said property so levied on at the time and place of sale, in the event said illegality should be dismissed by the court or be withdrawn, or should L. Kaminsky do so for him, then said bond to be void; else of full force and effect. The illegality .was dismissed by the court on the 11th day of July, 1904. On May 23, 1904, Berendt applied for homestead, filing schedule showing the stock of goods as owned by him as part of his assets, approximating $1,500 in value. On July 23, 1904, the stock of goods in the storehouse kept by I. Berendt on the southwest corner of York and East Broad streets, Savannah, Georgia, as the property of said I. Berendt, was surrendered.into the custody of the bankrupt court, of the Dnited States for the eastern division of the southern district of Georgia; and on July 23, 1904, Berendt was adjudicated an involuntary bankrupt. Dnder an order of the referee in bankruptcy, the property as above described was sold by the trustee in bankruptcy at public outcry, and brought the sum of $560. ¿\fter the adjudication in bankruptcy had been made, the affidavit of illegality was dismissed in the State court; and when the sheriff went to make demand for the goods, he found the same in the charge of the deputy marshal of the United States, acting as custodian of the bankruptcy court. The surety pointed out the goods to the sheriff, but delivery was refused by the marshal.

The defendant in error filed his suit to the May term, 1905, of the city court.of Savannah, alleging as follows: that I. Berendt and L. Kaminsky were residents of the city of Savannah; that at the November term, 1903, of the city court of' Savannah, Max liipps obtained judgment against the said I. Berendt for $192.26 .principal, and interest from November 26, 1902, and costs of court, and that on said date an execution was issued from said court on said judgment and levied on that day on the stock of goods then in the storehouse of I. Berendt, on the southwest corner of York and East Broad streets-in the city of Savannah; that on the 15th day of December, 1903, said Berendt filed his affidavit of illegality to said execution, and gave bond in terms of the law, with said L. Kaminsky as surety on the same, conditioned that should said Berendt deliver said property so levied on, at the time and place of sale, in the event said illegality should be dismissed by the court, or withdrawn, dr should the said L. Kaminsky so do for him then said bond to be void; else of full force and effect; that subsequently said illegality was dismissed by the court on the 11th day of July, 1904; and that, subsequent to the filing of the said illegality, said Berendt filed his petition for a homestead in the court of ordinary of Chatham county, and, .subsequent to filing said petition for homestead, filed a petition in bankruptcy in the United States court, southern district and •eastern division of Georgia, in which he also claimed a homestead, and that on the 23d day of July, 1904, this last petition was referred to the referee in bankruptcy, and on the 28th day of July, 1904, Berendt was adjudicated a bankrupt; and that on the 17th day of August, 1904, a trustee was appointed for said bankrupt’s estate, who duly qualified, and filed his petition for authority to sell all of the property belonging to said bankrupt’s estate; and that an order was duly passed giving said authority on the 10th day of October, and the trustee filed his report of the sale •on the 20th day of December, 1904, showing that all of the property of the said Berendt had been sold for the sum of $560, which sale was duly confirmed; and that on the 29th day of November, 1904, said trustee filed his report of the. property set apart to said Berendt as a homestead, and an order was-passed approving said report, whereby all of the property of Berendt .was set aside to him .as a homestead. Petitioner further showed that.from the date of said levy, namely, November 5, 1903, to the 33d day of July, 1904, when the marshal of the United States court took possession of the stock of goods of Berendt, the said Berendt had remained in possession of the stock of goods levied on previously by the sheriff,' and continued to sell the same in due course of business, and continued to do business in his store on the southwest corner of York and East Broad streets in the city of Savannah; and that by virtue •of the above facts it was impossible to advertise said property of Berendt for sale or to require him or his surety aforesaid to produce the same at the time and place of sale; whereby the principal and surety became indebted to the petitioner for the use of Max Bipps in the amount of his bond.

In repty to plaintiff’s petition the defendant denied the allegation in all the other paragraphs, except that he resided in Chatham county; and set up, that, though he admitted the execution-of the bond described in the petition, he was not liable thereon, because, ■on the 28th day of July, 1904, Berendt was adjudicated a bankrupt, and on the 29th day of November, 1904, he-received his discharge in bankruptcy, whereby Max Bipps became- barred from further proceeding against the defendant; and for the further reason that all of the property for the forthcoming of which said bond had been given was taken charge of by the bankruptcy court and administered by it, and that by reason of said administration he was unable to produce or deliver said goods upon the demand of -the plaintiff in this case.

Before the trial of the case, plaintiff amended his petition as follows: “Your petitioner further shows that from the date of said levy, to wit November 5, 1903, to the 23d day of July, 1904, when -the marshal of the United States court took possession of the then vstock of goods of the said Berendt, he, the said Berendt, remained in possession of the stock of goods levied on by the sheriff of the court, and continued to sell the same in due course of business, .and continued to do business in his store on the southwest corner of York and East Broad streets in the city of Savannah.” To this amendment the defendant demurred, -but it was allowed by the court; and to the averment of said amendment the defendant filed no plea.

This case was evidently tried in the court below on the single' issue as to whether the stock of goods taken charge of by the; United States marshal in aid of the proceedings in bankruptcy was the same stock of goods levied on by the sheriff. The contention of the plaintiff was, that, before the marshal took charge of the property, the stock of goods had been changed or disposed of by sale from time to time until more than enough of the stock had been dissipated to pay the plaintiff’s debt. The defendant’s surety contended that the stock of goods was the same, and that as a. surety he was relieved from liability on the forthcoming bond, by reason of the fact that the property was placed beyond the power of his principal and himself on account of its seizure by the bankrupt court. We would find no fault with the judgment of the. lower court if this were a real issue which should have been determined ; for it appears that the stock was for nearly eight months, in the custody of the defendant Berendt, and that his doors remained open for business; and we think the jury could have reasonably inferred that in that length of time as small an amount-as $192 worth of the goods in stock must have been sold or disposed of. We think it, however, fruitless to discuss the various-assignments of error arising from a trial predicated upon the theory to which we have alluded. The errors committed, if any, were immaterial. The real, issue in the case was whether the surety was liable on his bond for the non-production of the property according to the terms of his obligation. Under the agreed statement of facts he was liable, because the proceedings in bankruptcy were not instituted for more than four months after the levy of the sheriff. The lien was not divested by the proceedings, in bankruptcy. Bankrupt act 1898, §§ 67, 67 f, 30 Stat. 564, 565 (U. S. Comp. St. 1901, 3449); Dozier v. McWhorter, 113 Ga. 584, 39 S. E. 106. Neither the trustee in bankruptcy nor the United States marshal was entitled to the possession of the goods;, r.nd when Berendt, the principal, surrendered them to the bankrupt court, it was the duty of the surety to bring to the attention of that court the fact that .the stock of goods was subject to the-lien of the fi. fa. which had been levied upon them, and to have procured their release for his own protection. Having tacitN consented to the surrender of this stock of goods, it does not lie in his mouth to claim an advantage from that which he could himself have prevented. In so far as the homestead is concerned, it appears to have been taken in the residue of the stock of goods after the adjudication in bankruptcy, and to have been dependent entirely upon it. As the stock of goods under levy should not have been turned over to the bankrupt court, and as this disposition could have been prevented by tbe surety, he can derive no benefit from that. As said by the Supreme Court in Fleming v. Odom, 59 Ga. 363, “The personal property was in the hands of the sheriff on final process, and the assignee in bankruptcy could not dispossess him, legally, of it." And in this case the property levied upon was in the hands of the principal (only by reason of the bond upon which the defendant Kaminsky was surety), and the trustee in bankruptcy could not have dispossessed him if the surety had interposed proper and timely objections. The defendant failed to carry the burden resting upon him. The admission in his answer that he executed the bond, and that the goods were not produced in accordance with its terms, put upon the defendant the burden of showing that all of the goods levied upon had been set apart, and that more of them were sold.

In this view of the case we think that the verdict for the plaintiff was demanded by the evidence; and as none of the exceptions taken addressed themselves to this, the true view of the case, they need not be noticed. Judgment affirmed.


author: Russell, J. Powell, J.,

text:
    287.
    LEE & ANDERSON v. LOUISVILLE AND NASHVILLE RAILROAD COMPANY et al.

    When a summons of garnishment has been served upon the defendant in an action for damages, and when, in compromise of such an action, an agreement is made by the defendant thus garnished to settle the plaintiff’s claims for injuries- alleged, the proceeds of such agreement or the sum agreed to be paid is subject to garnishment issued in behalf of a creditor of the plaintiff in the suit for damages. While liability on.the tort is not garnishable, the amount agreed to be paid in settlement thereof is subject to garnishment. He who disregards a summons of garnishment does so at his peril.
    Powell, J., dissenting. Liabilities for torts are not subject to garnishment until liquidated by judgment or otherwise. The burden is on the plaintiff to show, upon traverse, tliat funds have come into the garnishee’s hands, prior to the service of the summons of garnishment or pending the same, subject to the proceedings. This is not done by showing that the defendant claimed a cause of action for tort against the garnishee, and that without admitting liability the garnishee, after-service of summons, bought peace by paying to the defendant a sum of money in cash or in a negotiable instrument which the defendant immediately negotiated to a third person; It not appearing that there was any other agreement liquidating the defendant’s demand against the garnishee.
    Garnishment, from Newton superior court — Judge Roan. September 27, 1906.
    Argued April 29,
    Decided July 18, 1907.

      Rogers & Knox, for plaintiff.

      Joseph B. & Bryan Gumming, J. M. Pace, for defendants.
   Russell, J.

Lee & Anderson held a fi. fa. against J. Tom Wright, obtained in the county court of Newton county. Summons of garnishment, based upon this judgment, was served on certain railroad companies on the 24-th of April, 1906, requiring them to answer at the July term, 1906, of Newton county court, what property, money, or effects of the defendant they had at the date of the service of the summons of garnishment; and also what property, money, or effects of the defendant may have come into their hands at any time from the date of said service to the date of the answer; and also what they owed the defendant at the date of the service, and also what they may have become indebted to the defendant at any time between the date of the service of the summons and the answer. At the time of the service of said summons there was pending in the circuit court of the United States for the northern district of Georgia, at Atlanta, a suit for $15,000, for damages from personal injuries alleged to have been sustained on March 4, 1905, in which said J. T. Wright was plaintiff, and the garnishees were defendants. On the 14th day of May, 1906, while the’ trial of said case was in progress, there was a parley between plaintiff and defendants therein, the outcome of which was that the garnishees agreed to pay J. T. Wright the sum of $1,750, in full settlement and release of any and- all claims whatsoever growing out of said injury. On the same day the garnishees gave to Wright a sight draft for $1,750, in full settlement of any and all claims and damages incident to the alleged person?! injuries, which draft was paid by the garnishees on the 15th day of May, 1906, in full. The garnishees thus ignored the garnishment of plaintiffs in fi. fa., and paid the whole amount of said $1,750 to said Wright. The garnishees filed their answer at the July term, 1906, of the county court of Newton county, denying that they were indebted to J. T. Wright at the time of the service of the summons of garnishment, or that they had become indebted to him at any time since the service, in any sum whatever which was subject to the process of garnishment, or that they owed him any debt; but the answer stated the facts substantially as herein set out. The answer was traversed by the plaintiffs in fi. fa., and the case was appealed by consent to the superior court. On the trial the plaintiffs tendered in evidence their fi. fa. against Wright, obtained at the October term, 1903, of Newton county court, for the principal sum of $291.34; also, certified copies of the suit in the United States court and of the judgment of that court withdrawing the case from the jury and dismissing it; also, the paid draft given by the garnishees to said Wright for $1,750, in full settlement of his claim for damages from personal injuries. The court rendered judgment against the traverse and in favor of the garnishees, and the plaintiffs excepted, insisting that the garnishees acted in their own wrong in ignoring’ the garnishment and paying the defendant the full amount of money, as the summons of garnishment operated as a lien from the time of service up to the time of making the answer, and that by no act of the debtor or the garnishees or both could the lien be defeated.

Two questions are presented. Is the fund, for any reason of law or public policy, exempt from garnishment; or, are the garnishees protected by reason of the fact that the draft outstanding m the hands of other persons might subject them to liability to pay the amount a second time? A claim for tort is not subject-matter of garnishment; and it is insisted that agreements to •settle or compromise' should not be hampered or thwarted, because it is to the public interest that such cases be settled. The draft in this case was drawn by a railroad company on itself. “An order for money, drawn by a municipal corporation upon its own treasurer, payable upon demand and without condition, is in effect a promissory note and is fan unconditional contract in writing* within the meaning of the Civil Code, § 4134." Morgan v. Cohutta, 120 Ga. 423, 47 S. E. 971. Then, could a- promissory note be garnished? We think the court erred in finding against the traverse. Every facility should be afforded to creditors for the collection of debts, and the processes of courts should not be disregarded and contemned unless the right to ignore them is unquestioned. With the exceptions hereafter mentioned, garnishment reaches everything due at the time of service of garnishment, and everything becoming due by the garnishee to the debtor up to the time of the answer. Having been served with process of garnishment, if there is any time between the service of the summons and- the date of his answer when he becomes indebted to the garnishing plaintiff’s debtor, no matter what the manner of his payment, he pays at his own peril. The public policy which favors the compromise and settlement of' lawsuits is not superior to the public policy in favor of collecting a just debt and requiring that the proper notice be taken of the process of the courts. The question then is, was there any time, after the service of the summons, when the garnishees in this case were indebted to Wright, the defendant in garnishment? If there was any such time, the lien of the garnishment would attach. It is immaterial whether the garnishees were liable to Wright in tort or not; for that liability is not subject to garnishment (see Holmes v. Pope, 1 Ga. App. 338, 58 S. E. 281). The' fact that Wright was plaintiff in an action for damages arising from personal injuries to himself is therefore immaterial, unless' for some reason or in some way it became the occasion of a contract by which the garnishees became indebted to him. We think the undisputed evidence shows that a debt from the garnishees to Wright was created by the proposition to pay him $1,750, and his acceptance. It was not payment, but it was a promise to pay supported by the consideration that he would dismiss the suit. It was a mutual understanding, creating an obligation on the part of each of the parties and enforceable by either on his compliance with his agreement.

The fact that the garnishees denied liability as to Wright’s suit is inconsequential in the case. They bought their peace for the fixed stipulated price which Wright charged for it. The bargain was struck, and they owed, him for their purchase until they paid him. The draft was, in effect, a promissory noté, but neither the draft nor note is the debt; each is only evidence of a debt which antecedes it. The note would presume blue existence of a debt, but a debt does not depend upon the creation of either draft or note. When the parties in the case in the United States court made their bargain, by which the garnishees promised to pay Wright $1,750, they could have paid it in cash as well as by draft. If they could, then the fact that they gave a draft is immaterial in the elucidation of the quéstion as to whether they are subject to garnishment. To say this would be to hold that the length of time required to discharge a debt determines the question as to whether it is such a debt as will be reached by garnishment already of force and served -upon the garnishee. If a garnishee’s , promissory note or negotiable draft is outstanding when the garnishment .is sued out, the garnishee is protected, to prevent him from having to pay the debt twice. But where a garnishee, having no obligation to pay outstanding, voluntarily assumes one to the debtor of a garnishing creditor, he can not invoke protection against a debt which he himself has created. The garnishees insist that to hold them subject in this case would be to prevent sales for cash by a debtor where a possible purchaser has been garnished. We do not think this of necessity follows; we are, at least, not called upon to so decide.. Whether this' is or is not true, when the garnishees gave Wright the draft on themselves, it was to all intents and purposes a promissory note due and payable on demand; and it can not be questioned that the debt thus evidenced, not being for any admitted or established liability in tort, is subject to garnishment. The very learned counsel for the defendants in error insists, that, in accordance with the provisions of the garnishment law applicable to negotiable instruments, the garnishees, from the moment they gave the check or sight draft, were indebted, not to Wright, but to whomsoever was the bona fide holder at the time it was presented for payment. We do not think that a garnishee, required by mandate of the court to answer as to his relation and status, whether as to property in his hands cr debt due by him, should be allowed to nullify the process of the court, and at the same time claim its protection against his own act. But whether or not we are right in this opinion, when the debt is evidenced bjr a draft drawn by one on himself, the rule relied upon is not applicable.

We have considered the case wholly from the position that there was no property in the hands of the garnishees up to the time of the answer, and that the only question to be considered was whether any debt, at any time prior to the answer, became due by the garnishees to Wright, the defendant in garnishment. We have borne in mind the uniform ruling, that liability for tort is not a debt, and that the debt which .arose was independent of any such liability, and that, as insisted by the garnishees (defendants in the action for damages), no such liability in fact existed. But while liability for tort is not a debt, the fact must not be lost sight of that a garnishee is not only required to answer what he owes the defendant, but he is also made responsible to account to the court for any property of the debtor subject to the garnishee’s control and disposal. If A, having B’s horse in his hands as bailee, answers that after being garnished he exchanged him, by B’s order, for a piece of land in Alabama, not subject to the garnishment, would he be discharged ? . If, then, the garnishees had any property of Wright in their hands, the lien of the garnishment would attach, and they could not change its status or character. And while liability for tort is not subject to garnishment, that a claim arising from a tort is property has been held by the Supreme Court. In Banks v. McCandless, 119 Ga. 798, 47 S. E. 332, it was expressly held that the contingent liability of a tort-feasor is properly which the debtor can not transfer to the injury of a creditor. If this be true, and if it is based upon any sound reason, can the debtor, with the aid of the garnishing creditor, be permitted to put the property where a creditor can not reach it? If it be property subject to a creditor’s demand, as expressly held in 59 and 119 Ga., will not garnishment hold it until the proper tribunal may at least have an opportunity of adjudging whether it is or is not exempt from the process? We think so. The extent of the holding as to liability for tort was that such liability was not a debt subject to garnishment. The reason for this is apparent, because the amount has not been ascertained; for after judgment garnishment is effective to fix a lien on the recovery. Under the ruling in Westmoreland v. Powell, 59 Ga. 258, the term “'debtor” is applicable to tort-feasors, and is extended so as to include “one who owes another for an unascertained damage to person or property/’ so far as fraudulent conveyances by that’ debtor are concerned. And following this with the ruling in 119 Ga. supra, the court, in our.opinion, makes the principle applicable to garnishments by holding that an unascertained claim for damage is property. And we see no- conflict in these holdings. A claim for unliquidated damages may be property (its value dependent upon circumstances very great or very small), while it can not be a debt -because the amount is unknown. As property the claim of Wright in this case was subject to garnishment; and as a promise of the garnishees to pay a certain sum, whereby a debt was created, it was no less subject. In either event the judgment of the trial judge was erroneous. Judgment reversed.

Powell, J.,

dissenting. I will outline my reasons for dissenting in this case. Before the plaintiffs could recover against the garnishees (the railroad companies), it was incumbent upon them to show thát the garnishees were indebted to the defendant (Wright) at the time of the service of the summons of garnishment, or became indebted between that date and the time of filing their answer. Proof that, at the time of the service of the summons, an action was pending by Wright against the railroad companies is not proof that the companies were really indebted to lnm. This would be true even as to an action ex contractu; and it is irrefragably true as to an action for tort. Gamble v. Central R. Co., 80 Ga. 595, 7 S. E. 315, 12 Am. St. R. 276. If it had been shown that, as a result of either form of action, a final unappealed judgment had been rendered, this would have been sufficient evidence of an indebtedness from and after the rendition of the judgment. In the case at bar no final judgment was ever rendered. Did the railroad companies, then, become indebted between the service of the summons of garnishment and the date of the answer thereto ? If the parties merely liquidated, by agreement, an. admitted or established tort, the question should be answered'in the affirmative. Prom the record it is clear they did not do this. In the very proposition of settlement the companies denied liability, and merely offered, as a cash transaction, to buy peace. They offered to buy for cash something which was not, at least so far as the proof shows, a liability against them. This they could do without incurring an indebtedness; for in cash transactions no -indebtedness is contemplated by the parties, or by the law. Bergan v. Magnus, 98 Ga. 514, 25 S. E. 570; Matthewson v. Belmont Co., 76 Ga. 359; Emery v. Atlanta Exchange, 88 Ga. 325, 14 S. E. 556. It was a.cash transaction; but it is said that the companies did not pay in cash. They did the same thing; they paid by a negotiable instrument; and, as Lord Mansfield says of such instruments in the case of Miller v. Race, 1 Burr. 457, "Now they are not goods, not securities, nor documents for debts, nor are so esteemed; but are treated as money, e.s cash, in the ordinary course and transaction of business, by the general consent of mankind; which gives them the credit and currency of money to all intents and purposes. They are as much money as guineas themselves are, or anjr other current coin that is used in common payments as money or cash.” Indeed this court and the Supreme Court recognize that an indebtedness by negotiable instrument is not subject to garnishment, unless the garnishing creditor shows that the bill has become past due in the hands of the defendant, or that it is otherwise so impounded that possibility of its negotiation is excluded. Of course if the draft given to Wright was not a negotiable instrument, my whole argument falls. It was in the following form:

"Georgia Railroad.
"$1,750.00 Atlanta, Ga. May 14, 1906.
"At sight pay to the order of John T. Wright the sum of seventeen hundred and fifty dollars, in full settlement of any and all claims and damages incident to alleged personal injuries sustained at Atlanta, Ga., in the Union Passenger Depot on March 4, 1905.
"To W. S. Morris, Esq., Treasurer, Ga. B. B. Augusta, Ga.
“Jos. B. Gumming,
Gen. Counsel Ga. B. B.”

■ Endorsed, "John T. Wright.” Also, "Pay to the order of any bank or banker. Prior endorsements guaranteed. May 14, 1906. Fourth National Bank of Atlanta, Ga., Chas. J. Byan, Cashier.”

"A bill of exchange may be drawn upon the drawer himself, and is then in effect the promissory note or the accepted bill of the drawer at the holder’s election; and this is true in general of a bill or a draft drawn by a principal on his agent, or by an agent on his principal, or in'the principales business by-one agent on another.” 7 Cyc. 569. Treated purely as a promissory note, the instrument in question may be properly considered as past due, and therefore not negotiable from the moment of its issue, under the rule stated in the Civil Code, §3700. Under the same section, if treated (as the holder was entitled to do at his option) as a bill of exchange, it was net due until presented for payment, if presented in a reasonable time. The intention of the parties as derived from the form and nature of the instrument largely controls. It was manifestly not the purpose of the railroad corn-pa^ to give its note payable on demand, but to give a draft made in Atlanta, and not payable until it could be presented in Augusta; and to have it operate and pass as an ordinary bill of -exchange. In the case of Lynch v. Goldsmith, 64 Ga. 50, Judge Bleckley,— and when in Georgia decisions we speak of Bleckley, “We have reached the mountain from which the drift bowlders were detached,” — after deciding as to the applicability of the Civil Code, §3700, to the instrument then in question, adverts by way of obiter to the proposition that the intention as to the maturity of the instrument should be determined by the purposes it is issued to sub-serve. ^In the ease at bar the maker of the paper manifestly intended that it should not be payable on immediate demand; the payee likewise so took it, for he immediately negotiated it to the bank. Being a negotiable instrument, the garnishment did not catch the indebtedness thereby represented. I think, therefore, that the trial judge decided the case properly, and dissent from the judgment of this court to the contrary.


text:
    291.
    City of Statesboro v. Simmons.
    Complaint, from city court of Statesboro — -Judge Brannen. August 28, 1906.
    Argued April 29,
    Decided July 18, 1907.

      Remer Proctor, Johnston & Cone, for plaintiff in error.
   Hill, C. J.

No material error of law was committed. The evidence warranted the verdiet, and it was approved by the trial court.

Judgment affirmed.


text:
    323.
    Ratcliff v. Smith et al., commissioners.
    Certiorari, from Cobb superior court — Judge Gober. October term, 1906.
    Argued May 7,
    Decided July 18, 1907.
    J. N. Edwards, for plaintiff in error.
   Hill, C. J.

Where a petition for certiorari alleged that a trial was had,, before road commissioners, of the petitioner, charging him with being-a road defaulter, and a judgment rendered fining him $3 as such defaulter, and the answer to the writ of certiorari did not verify the statement that a judgment was rendered against him by said road commissioners, or disclose what disposition was made of the ease by them,, and no exception was taken so as to require the commissioners to answer more fully, so as to verify the allegation as to the rendition of the judgment complained of, this court can not reverse a judgment of the superior court overruling the certiorari. Landrum v. Moss, 1 Ga. App. 216, 57 S. E. 965; Stoner v. Magins, 116 Ga. 797, 43 S. E. 45; Manning v. Gainesville, 125 Ga. 239, 53 S. E. 1002; Jessey v Dean, 122 Ga. 371, 50 S. E. 139. Judgment affirmed.


text:
    324.
    WESTERN & ATLANTIC RAILROAD CO. v. CLARK.
    1. In the absence of positive evidence of negligence, or, where -the only express evidence of negligence in behalf of the plaintiff is a mere expression of opinion, the presumption of negligence arising against a railroad company from proof of the killing of an animal is met and overconic by evidence for the defendant company showing that the animal could not have been seen soon enough to avoid the casualty, and that after it was discovered all diligence was used to prevent the killing.
    2. But where the evidence for the plaintiff shows negligence as a matter of fact and is in material conflict with the evidence introduced by the defendant for the purpose of rebutting the presumption of negligence, an issue of fact is raised which must be determined by the jury, and their finding thereon will not be disturbed by this court.
    3. Unless the point be waived, a judge of the superior court commits no . error, of which plaintiff in certiorari can justly complain, in overruling the certiorari, where the answer to the writ of certiorari does not verify the statement in the petition that a verdict and judgment were rendered against it in the court in which the ease originated, or disclose what disposition (if any) was made of the case in'that court.
    Certiorari, from Catoosa superior court — Judge rite. August 9, 1906. ‘
    Submitted May 7,
    Decided July 18, 1907.

      R. J. & J. McCamy, W. H. Odell, for plaintiff in error.

      William E. Mann, contra.
   Russell, J.

This case has been to the Supreme Court, and ig reported in 121 Ga. 419, 49 S. E. 290. No opinion follows the judgment rendered in the headnote. So far as appears from the headnote, the judgment of the lower court was reversed at that time because the evidence in behalf of the railroad company, rebutting the presumption of negligence arising from proof of the killing of the animal by the defendant company’s train, was uncon'tradicted except by a mere expression of opinion by one witness. \Ye have not thought it necessary to examine the original record transmitted to the Supreme Court on the former hearing, because, regardless of what may then have appeared, there is in the record before us a direct conflict in the evidence upon the subject of negligence as related to the killing. This issue of fact it is the exclusive province of the jury to decide, and we have neither the power nor disposition to disturb their finding. It appears that the engineer and fireman rebutted the presumption of negligence arising from the killing of the steer by the defendant company’s train, by testifying that they did not see the animal in question (and on account of a curve could not see it) until it was within twenty or thirty feet of the engine. They both swore that they were looking ahead, and that the steer was killed four hundred and fifty yards north of the public-road crossing. Both swore it was too late when the animal was seen to do anything to stop the train, and that nothing was done. Under this evidence the presumption of negligence would have been -rebutted, and without more a finding for the plaintiff would not have been authorized. In the answer, however, appears the testimony of two witnesses for the plaintiff, which is in direct conflict with the evidence in behalf of -the defendant, as to the only material issue in the case. The only real question in the case was whether the cattle came so suddenly on the track from previoris concealment that it was impossible for the train crew, though ever so diligent, to prevent the casualty. The two witnesses for the plaintiff testified that the steer could have been seen for two hundred and fifty yards, that there was nothing to prevent the engineer and fireman (either embankment, curve, or other obstacle) from .seeing if they had been- looking out. . One of these witnesses stated, that he saw the killing, that the cattle were in plain view, and could have been seen by the engineer, :if he had been looking out, for a distance of two hundred and sixty measured yards, that no effort was made to stop the train before the killing, that the speed of the train was not slackened, and the whistle was not blown. According to the plaintiff’s evidence the . killing could have been prevented, because the engineer himself testified thal the train could be stopped in one hundred and thirty-six yards. According to defendant’s testimony the accident could not be prevented; and this clearly raised an issue of fact, which could not be settled except by the jury. As it does not appear that their finding was induced by or dependent upon any error of the court, it can not be disturbed.

We have passed upon this phase of the ease only because no notice seems to have been taken in the court below of the defect in the magistrate’s answer, or, at least, the plaintiff in erroT was .given the benefit of the doubt as to the unexpressed intention of the magistrate, and the point was waived. It doubtless was the intention of the magistrate to adopt the allegations of the petition as to the judgment rendered and the assignment of error, but he failed to say so; and the judgment of the superior court in overruling the certiorari would be sustained if his decision had been based only on the ground that the answer did not disclose what disposition was made of the case in the trial court. The language of the answer is as follows: “And now comes the defendant, answering the -writ of certiorari served on him, and says that the following is also held as his answer, except as follows.” ‘This is all of the justice’s answer, except that following the words •above quoted ho purports to give the substance of the testimony •of two witnesses for the plaintiff (defendant in certiorari). We would have decided the case upon the principle announced in Stoner v. Magins, 116 Ga. 797, 43 S. E. 45, and frequently since reaffirmed, without any discussion, except for the fact that the point seems to have been waived in the court below. It was at least treated thus by the trial judge; for the answer of the magistrate was traversed, a trial had upon it and a verdict rendered, finding against the traverse. As stated above, we think that the magistrate intended to adopt the allegations of the petition for certiorari, so as to verify the statement therein that a verdict and judgment were rendered against it in his court. But he failed.to do so, and for that reason, if for no other, the judgment of the superior court in overruling the certiorari must stand affirmed.

Judgment affirmed.