text:
    202.
    MUTUAL RESERVE LIFE INSURANCE COMPANY v. FOWLER.
    1. As to assets in the hands of a garnishee, such garnishee is entitled to set off any indebtedness owed by the defendant in garnishment, and all such indebtedness. The question as to whether. such garnishee is or is not indebted to the defendant, or whether such garnishee has assets of such defendant in its hands, should be ascertained by a comparison of their respective claims or accounts, and tlie judgment should be in accordance therewith.
    '2. A garnishee, if the debtor be indebted to him, has a lien on funds coming into his hands, or future indebtedness to the debtor on his part, superior to that of the plaintiff in garnishment. He is entitled to pay himself before he is required to collect for the benefit of others; and this applies to any past indebtedness due him by the defendant.
    3. Consequently, to withdraw from the jury, by failure to charge thereon, the consideration of past indebtedness by the defendant in garnishment to the garnishee, and to confine the investigation, as to the state of the mutual accounts between the garnishee and the defendant in garnishment, to the period of time between the service of the summons and the date of the answer, was error; and the verdict and judgment should be set aside.
    4. The purpose of the act of 1901 (Acts 1901, p. 55) was to reach indebtedness accruing between the. service of the summons of garnishment and the answer, and to prevent evasions and subterfuges on the part of garnishees; but it does not intend to violate existing contracts or restrain the right to contract.
    Appeal, from Fulton superior court — Judge Pendleton. December 21, 1906.
    Argued February 27,
    Decided April 11, 1907.

      Anderson & Anderson, L. W. Thomas, for plaintiff in error.

      J. E. & L. F. McClelland, J. D. Kilpatrick, contra.
   Russell, J.

This case originated in a justice’s court of Fulton count}’, where J. S. Fowler appeared as plaintiff, J. Cable Davis as defendant, and the Mutual Beserve Life Insurance Company as garnishee. A judgment was rendered against the main defendant, and upon a trial upon a traverse of the answer of the garnishee a judgment was rendered against it. The case was appealed to the superior court, and upon a trial before a jury a verdict was rendered against the garnishee for $133.15, being the principal and interest of the debt due to Fowler by Davis. A motion for new trial having been denied, the case was brought to this court for review. In addition to the allegation of error that the verdict is contrary to law and the evidence, the plaintiff in error avers, in the third ground of the motion,- that the court erred in admitting certain evidence; in the fifth, that the verdict is contrary to an instruction of the court; and in the fourth and sixth grounds it excepts to certain portions of the charge of the court-The seventh and eighth grounds of the motion specify wherein (according to the contention of plaintiff in error) the verdict is-contrary to evidence; the plaintiff in error insisting that the evidence shows that the company had not waived any stipulations of its contract with its agent, Davis, with reference to the forwarding of moneys to the home office of the companjq and therefore the-garnishee in making its answer had the right to offset any amount due to it by Davis. None of the several grounds of the motion for new trial need be considered except in so far as they present or illustrate the controlling issue in the case at bar, which is the proper construction of the act of 1901 (Acts of 1901, p. 55), which amended the existing 'garnishment laws of this State. This act is as follows: “An act to amend the garnishment laws of this "State, so as to make subject to the lien of garnishment all indebtedness of the garnishee to the defendant, accruing after the date of the service of garnishment; and for other purposes. . . Be it enacted by the General Assembly of the State of Georgia, and 'it is hereby enacted by the authority of the same, that from and after the passage of this act, whenever a summons of garnishment is served on any person, and such person, after the date of such service, becomes indebted to the defendant, such subsequent indebtedness immediately upon its accruing shall become subject to the lien of such garnishment, and no payments made by the garnishee to the defendant, or to his order, after the date of the service of garnishment, shall defeat the lien of such garnishment.' The service of a summons of garnishment shall in all cases operate as a lien on the garnishee’s indebtedness, at the date of the service, and also upon all future indebtedness accruing up to the date of the answer; and such lien shall not be defeated by any payments of the garnishee, or overdrafts by the defendant, or other arrangements between the defendant and the garnishee.”

As appears from the record, the Mutual Reserve Fund Association, now the Mutual Reserve Life Insurance Company, on July 1st, 1901, made a contract with J. Cable Davis, of Atlanta, Georgia, appointing him its general agent. Among other things the contract contains the following stipulations: “The association may-offset against any claim for compensation, under this agreement, any amounts payable to other agents on policies secured under this or any other agreement, and any debt due by said party of the second part to said association.” According to the undisputed evidence, when the company was served with summons of garnishment on August 37, 1903, Davis owed the company $9,941, after deducting $1,113.57, which Davis was entitled to as a credit between the date of the summons of garnishment and the filing of the answer on September 14, 1903; this amount was due without charging Davis with the additional amount of $1,303.16, which he had become indebted to the company between August 37 and September 14; and allowing Davis credit for $350 a month office expenses from June, 1901, to September 14, 1903, to which Davis was entitled, it would still leave Davis indebted to the insurance company both when the garnishment was served, August 37, 1903, and on September 14, 1903, the date the company made its answer, more than $3,000. Between the service of the summons of garnishment'and the answer Davis earned, under his contract, about $190 more than he drew out. This was, an amount more than enough to pay the debt of the garnishing creditor, and the jury by their verdict applied it to the payment of this debt, although the evidence showed, without contradiction, that Davis was deeply indebted to the company and that by its contract the company had the right to apply this overplus of earnings to the diminution of Davis’s debt to itself. The verdict made the garnishee pay Davis’s debt to Fowler, despite the fa,ct that Davis was indebted to the company and despite the provision of the contract that the company might .set off any indebtedness due it, because of the fact that during the time intervening between service of the summons and the garnishee’s answer Davis had drawn (during that period), under the contract, more than he had earned, — an amount more than was necessary to satisfy the garnishing creditor’s demand. The real question in the case, therefore, is whether the contract or the garnishment shall have precedence. We do not think the garnishment can affect the prior contract. The contract antedated the summons of garnishment by more than two years; and if it be genuine and speak the truth, it was not entered into with a view of evading the provisions of the act of 1901, because the contract was made before the passage of the act. It is not attacked as being invalid or fraudulent. On the contrary the plaintiff’s recovery was based upon an indebtedness claimed to be clue by the plaintiff in error, as garnishee, to plaintiff’s debtor; and the evidence bjr which it is sought to show that the company owed Davis depends entirely upon the contract as its foundation. It is unnecessary to hold that it was not the intention of the legislature, in the passage of the act in question, to impair the obligation of existing contracts. In the absence of an explicit expression upon the subject the contrary would be presumed.

This being true, and it being undisputed in the evidence that at the time of the service of the summons of garnishment Davis was indebted (even deducting the allowance for office expenses) to the garnishee, the insurance company, the question arises whether Davis earned more in the employment of the company between the date of the service of the summons of garnishment and the date of the garnishee’s answer than was necessary to discharge his indebtedness to the company. This court has already held, in Holmes v. Pope, 1 Ga. App. 338 (58 S. E. 281), that, “as to assets in the hands of a garnishee, such garnishee is entitled to set off any and all' indebtedness owed by the defendant in garnishment. The question as to whether such garnishee is or is not indebted to the defendant, or whether such garnishee has assets of such defendant in his hands, should be ascertained by a comparison of their respective claims or accounts, and the judgment should he in accordance therewith.” If the contract was valid and Davis was indebted to the garnishee at the time of the service of the summons of garnishment, it is clear that the garnishee would have the right to apply any sums which it might thereafter owe Davis, or any ■assets of his lawfully coming into its hands, to the extinction of his indebtedness to the company before applying it to any other demand.

But it is insisted by counsel for defendant in error that the company had, by a long course of dealing (in which it had allowed Davis to keep moneys collected by him and retain his fees and commissions instead of forwarding them to the company) waived and abrogated the stipulations of the contract upon the subject, and that therefore the correct basis of ascertaining the true state of accounts between Davis and the company, so far as the garnishment law is concerned, is to ascertain whether Davis earned more during the intervening period of time, which elapsed from the service of the summons of garnishment and the garnishee’s answer, than would be sufficient in amount to pay the plaintiff’s, demand. This leaves out of sight the admitted fact that the defendant Davis owed the garnishee several thousand dollars at the time that the garnishment was served, and does not take into consideration the question whether the amount that the company may have become indebted to Davis thereafter and before its answer exceeded Davis’s prior indebtedness to the company. The true Tule is that a garnishee, if the debtor be indebted to him, has a lien on funds coming into his’ hands, or future indebtedness to the debtor on his part, superior to that of the plaintiff in garnishment. He is entitled to pay himself before he is required to collect for the benefit of others; and this applies to any past indebtedness due him by the defendant.

We think that the following instruction of the court was erroneous, because it confined the investigatioh of the jury entirely to the narrow limits alluded to above. “Did the insurance company or garnishee become indebted to the defendant Davis between August 27th and Sept. 14th, 1903? If they did, and they paid the sum to Davis between August 27th and September 14th, you will find their answer is not true.” The latter portion of the instruction is sound law; but the question in the first sentence, without explanation, was likely to mislead the jury into the belief that they were confined in their investigation to the period mentioned. It should have been explained in this connection that what the court meant (as he doubtless did) by the company becoming indebted to Davis was, being indebted after taking into consideration the state of'their mutual accounts at the time of the service of the summons of garnishment. It is true that in another portion of the charge the learned trial judge correctly instructed the jury upon this point; but judging from the verdict rendered upon undisputed testimony, the jury must have been misled by the intimation conveyed in the question, which had the effect of withdrawing the consideration of Davis’s past indebtedness to the insurance company. And in such a case as this, to withdraw from the jury, by failure to charge thereon, the consileration of past indebtedness by the defendant in garnishment to the garnishee, and to confine the investigation as to the state of the mutual account between, the garnishee and the defendant in garnishment to the period of time between the service of the summons and the date of the answer, was error. If the jury were not misled by this portion of the judge’s charge, the verdict was wholly contrary to other portions in which they were clearly and correctly instructed; and for that reason a new trial should have been granted.

To give to the act of 1901 (Acts 1901, p. 55) the construction placed thereon by learned counsel for defendant in error would not only be destructive of the plain contract in this case, but would extend the statute far beyond the manifest purpose of the legislature in its enactment. A cardinal rule in the construction of a statute is to ascertain the legislative intent by a consideration of the old law, the evil sought to be remedied, the remedy provided, and the reason therefor. It has been further held that the intention of the legislature is to be deduced from a view of the whole and every part of the statute taken together and compared. 12 Whart. R. 332. Another fundamental principle laid down by Judge Warner in White v. Ross, 40 Ga. 341, is that “all laws should be made to commence in futuro,” and in the absence of a provision to the contrary they will be held only to prescribe for the future. Construing by these rules the act from which we have quoted the caption and first section, we have no difficulty in reaching the conclusion, that, as to assets in the hands of a garnishee, such garnishee is entitled to set off any and all past indebtedness due him by the defendant in garnishment. The question as to whether such garnishee is or is not indebted to the defendant, or whether such garnishee has assets of such defendant in its hands, should be ascertained by a comparison of their respective claims or accounts (the garnishee not being allowed to increase the indebtedness xo himself, for the purpose of this comparison, after the service of the summons), and the judgment should be in accordance therewith.

As a matter of common knowledge it was frequently true that .before the passage of the amending act of 1901 creditors defeated the process of garnishment and rendered it inoperative, or attempted to do so, by making advance payments to their employees or by accepting orders given by defendants in garnishment after the service of the summons .of garnishment and before their answers. 'This was the evil that the legislature sought to reach and uproot, and this appears from the reference to these devices in the act. The remedy proposed was the act of 1901, which was designed to thwart the subterfuges theretofore employed to evade the collection of debts due to defendants in garnishment by garnishees. Considering the caption and the first section, all of the parts, together, it is plainly to be seen that this was the sole purpose of the act. Both in the caption and in the act itself a lien is declared to which all indebtedness of the garnishee to the defendant, accruing after ■date of the service of the summons of garnishment, shall be subject. The language employed in the act further strengthens and ■enforces the view that it is to future indebtedness that the law. applies: “whenever . . such person, after the date of such -service, becomes indebted to the defendant, such .subsequent indebtedness, immediately upon its accruing, shall become subject,” ■etc. Under the evidence in this ease the garnishee never did become indebted and no debt accrued between the service of the ■summons and the date of the answer. It is unnecessary for us io discuss the fact that Davis drew more from the company than he paid on his indebtedness. Such a modus operandi might be “an arrangement” between the defendant and the garnishee. If ■so, it could not be allowed to defeat the garnishment. But in this ease the fact that it was such an “arrangement” as is referred to in the act was not shown, because, if Davis’s whole earnings for the period between the service of the summons of garnishment and the date of the answer be applied to the payment of the indebtedness existing prior to the garnishment, and the amounts drawn •out by him had likewise been deducted and used to diminish his indebtedness instead of to increase it, the evidence still shows him to be in the debt of the insurance company and therefore no indebtedness on the part of the garnishee to Davis has accrued so as to be subject to the lien, — the garnishee has not become indebted to Davis. There was, therefore, no competent evidence to sustain the verdict of the jury who found that the company had become indebted to Davis.

We are not called upon at this time to pass upon a judgment in a case where there was no evidence that there was an anterior indebtedness. In such a case it would be for a jury to say whether the moneys retained by Davis were moneys which under the contract he was entitled to retain, and which had never gone and might never go into the custody and possession of the garnishee (although it might be Davis’s duty to remit such funds and have the-company make the settlement), or whether the money was the' liroperty of the company constructively in its hands because Davis-is its agent, and certain sums being due,.or having become due after service of summons of garnishment. But in this case under no possible view of the evidence can it be claimed that the garnishee has ever become indebted to the defendant in garnishment. Therefore no lien could attach, and the verdict was without evidence to support it. For that reason the judgment should havs been set aside and a new trial should have been granted.

It is wholly immaterial to the present discussion whether the- “ company waived any of its rights under the contract with relation to the collection of the premiums, because the evidence showed that it has never owed Davis anything at any time, even if Davis-might have owed it less if it had required the literal fulfillment of the contract. There is nothing ruled in this case which is antagonistic to the ruling in Odum v. Ry. Co., 118 Ga. 794. In. the Odum case Judge Cobb, delivering the opinion, says: “The purpose of the act was evidently to alter the rule which had been laid down by this court, in several cases, to the effect that, even, after a summons of garnishment had been served, no lien would, attach upon an advance payment for services to be performed in the future.” And he cites the cases of Standard Wagon Co. v. Lowry, 94 Ga. 614; McKee v. Ga. Oil Co., 99 Ga. 107; Wilson v. Georgia R. Co., 103 Ga. 578, and the cases cited there. And the court unanimously concur in the opinion that it was not the intention of the legislature to hold an employer, who had advanced. money to his employee prior to service of summons of garnishment upon him, liable to pay to a garnishing creditor that portion of the amount advanced which was unearned at the date of the service of the summons of garnishment. This construction, which would force the garnishee to collect for the garnishing creditor before he is permitted to procure the repayment of a just debt due to himself by the common debtor, is declared to be too unreasonable and arbitrary to be adopted, since the language of the act construed as a. whole does not demand •such interpretation. So far as appears to-us, the difference between the case at bar and the Odum ease is very slight so far as the facts are concerned. In the present case, as in Odum’s case, the garnishee owed the defendant in garnishment nothing when served. In the Odum case McLaughlin owed the railroad company for unearned salary which had been advanced prior to the service of the summons, just as Davis in the present case owed the insurance company for unearned fees, commissions, and salary which had been advanced or which he had collected. The advancement or indebtedness in each case was reduced by earnings of the employee before the answer, but in both cases the employee was still indebted to the garnishee. In the present case the debtor had increased his indebtedness, but, so far as appears from the evidence, this was not with the garnishee’s consent, but rather in spite of the company and the contract. We hardly think this slight difference in the two cases should make the reasoning in the Odum case inapplicable to this.

Judgment reversed.


source: Caselaw Access Project

author: Russell, J.

license: Public Domain

text:
    211.
    SINGER SEWING MACHINE COMPANY v. SOUTHERN GROCERY COMPANY.
    1. The situation which the garnishing plaintiff occupies in respect to the garnishee can be no better than that which the defendant himself occupies in respect to the garnishee. If the defendant himself, suing the garnishee, could not get a judgment against him, the garnishing plaintiff can not get a judgment against the garnishee. The creditor may stand in his debtor’s shoes by means of garnishment, but he gains no additional privileges.
    2. The act of 1901 (Acts 1901, p. 55), creating a lien on all future indebtedness of the garnishee to the defendant accruing up to the date of the answer, was only intended to keep garnishees from evading the law. For the reasons stated in the first headnote, it is not intended to- restrain the right of parties to contract.
    3. Consequently, in a case where it appeared by the undisputed evidence, that, under a contract operative more than a year before an attachment was sued out, the defendant, sold sewing machines for the garnishee, and that the contract relations were that the defendant used his own horse and wagon, paid his own taxes and expenses, and deducted his commissions before remitting the weekly balances, not being indebted or responsible to the garnishee for any proceeds of the sale except the portion due by the contract, the garnishee was not at any time indebted to such debtor, and was not subject to process of garnishment. Consequently, where a judgment was rendered against such garnishee and exception was taken thereto by certiorari, to dismiss such certiorari was error.
    Certiorari, from Chatham superior court — Judge Cann. De> eember 29, 1906.
    Argued February 27,
    Decided April 11, 1907.

      Stubbs & Chapman, Hooper Alexander, for plaintiff in error.

      Wilson & Rogers, contra.
   Russell, J.

Exception is taken to the dismissal of a certiorari. The Southern Grocery Company sued out attachment against Johnson, who resided in South Carolina, and served a garnishment on the Singer Sewing Machine Company. The latter answered not indebted, and the former traversed the answer. On the trial of the traverse the justice held that the garnishee was liable, and on certiorari the presiding judge agreed with him and dismissed the certiorari.

The defendant in attachment sold sewing machines in South Carolina for the plaintiff in error, under a contract which was executed and had been operative more than a year before the attachment was sued out. The contract relations between Johnson and the Singer Company were as follows: The company shipped machines to him, and he used his own horse and wagon, paid his own taxes and expenses, leased and sold the machines for cash and on credit at prices fixed by the company, and made weekly reports to the company on blanks furnished by it to him. For his services he was entitled, under the contract, to two commissions: (1) A selling commission of twenty-five per cent, of every machine sold; if a cash sale, he took out his twenty-five per cent., and with this weekly report sent the balance to the Savannah office. The company never saw or handled the money, but by virtue of the contract Johnson retained it. If a credit sale, he retained all the money he collected until he had his twenty-five per cent.; the balance he sent to the company as its share of the transaction. (2) A remitting commission of twenty-five per cent, of such part as ' he might collect of the- company’s seventy-five per cent, of the proceeds of his leases and sales, which was due to him one week after he had remitted his collections for the week; e. g., if on Saturday, February 16, he reported that he had collected $10 for the company, he sent it, less his commission for the preceding week, with Iiis report, and on the 23d he was entitled, under his contract, to take out twenty-five per cent, or $2.50, from that week’s collections, before making his remittance to the company. Copies of all of Johnson’s reports, for the period claimed to be affected by the garnishment, appear in the record. His selling commissions from the date of the service of the summons to the date of answer, over six weeks, amounted to $23. This never passed out of Johnson’s hands, but he retained it by right of his contract. Hnder the evidence his remitting commission amounted to $14.13, made up of six items for the six weeks, varying in amounts from fifty-one cents to a few dollars. His contract allowed, and the evidence showed that at the end of the week, when he made up his report, he took out of the amount collected his commission for the previous week, and sent to the company the difference; so that as a matter of fact the company never did handle any of the defendant’s money. It kept no books, had no charges for or against him, and paid him no salary.

From the above correct summary of the evidence we are satisfied that the certiorari should not have been overruled; for by no construction of the contract could it be said that the companjr owed the defendant more than the amount of the remitting commission, viz., $14.13. We are of opinion that no judgment should have been rendered against the company. We have endeavored to declare the intention of the legislature in the passage of the act of 1901, in Mutual Reserve Ins. Co. v. Fowler, ante, 537. The garnishment law was not intended to restrain the right of parties to contract. The act was only intended to keep men from evading the law. So far as appears, the contract in this case was made in good faith, and had been in operation for more than a year before this garnishment was issued. It is not even suggested that it was made with any purpose to evade the law. Johnson was simply a salesman on commission, with the contract right to deduct his commissions and send the balance to the owner of the goods. We do not think that a wholesale merchant in Atlanta, who ships goods to a retailer to sell on commission, owes 'the retailer money; or that a farmer, who sends produce to a broker or commissioner to be sold on commission, owes, by reason of that fact, the latter the amount of the commission. In such cases neither the wholesale merchant nor the farmer will ever owe the commissions. If there is no.sale, there will be nothing due. If there is a sale, the commissions are deducted from'the collections and are paid by the purchaser; and so far as the vendor and his agents are concerned, it is a cash, transaction. From the nature of the case there can be no debt,, for the commission man is paymaster and pays himself, whether the sale be for cash or on time. A controlling reason why there should have been no judgment against the garnishee in this case is that the debtor, Johnson, could not have obtained a judgment-against the garnishee upon the same demand. Generally a judgment creditor may acquire by garnishment a control over thechoses in action of the defendant, and thereby in effect bring suit against his debtor’s debtor. But the situation which the garnishing plaintiff occupies in respect to the garnishee can be no better than that which the defendant occupies himself in respect to the garnishee. If the defendant himself, suing the garnishee, could not get a judgment against him, the garnishing plaintiff can not get a judgment against the garnishee. The creditor may stand in. his debtor’s shoes by means of garnishment, but he gains no additional privileges. Holmes v. Pope, 1 Ga. App. 343 (58 S. E. 281). The garnishee’s -rights were defined by the contract with. Johnson. The garnishing creditor could not, by garnishment, acquire greater rights. The company could not have ordered Johnson to send all he collected, or to send in the commissi,ons they had contracted to pay. They could not have enforced such order by law, for the contract would have prevented it.

As ruled by the Supreme Court in Butler v. Billups, 101 Ga. 103, “A plaintiff by garnishment can not place himself in a superior position as regards a recovery than is occupied by the principal defendant. The garnishee’s liability is measured, by his responsibility and relation to the defendant; he can be charged only in consistency with the subject of his contract with defendant.”’ To the same effect is the opinion in Hoskins v. Johnson, 24 Ga. 628, in which it is said: “If the case be one in which the defendant himself, if suing the garnishee, could not get a judgment against the garnishee, it is one in which the garnishing plaintiff can not get a judgment against the garnishee. This must be manifest.” . Under the contract Johnson could not have sued the company for his commissions; for it was his right to retain them, and they were never intended to reach the company. The same ruling as made in the cases above cited was announced in Tim v. Franklin, 87 Ga. 95, and Bates v. Forsyth, 69 Ga. 365.

The contract in this ease, strictly speaking, did not create the relation of employer and employee. It is therefore doubtful if the case comes within the scope of the act of 1901, or is at all affected thereby. As we have explained, in Mutual Reserve Life Insurance Co. v. Fowler, supra, the purpose of that act is to prevent evasions of the garnishment law, and it was specially intended to correct an evil supposed to exist among a particular class. The relation between the defendant Johnson and the garnishee was that of a salesman on commission. He was, in a sense, a traveling commission merchant who handled only one kind of goods, and who, by contract, could sell for the manufacturer, the garnishee, only at a fixed price. Whatever it was, the relation was fixed by the contract. The evidence did not show that the purpose or effect of the contract was to evade process of garnishment. And as the garnishee could not sue for any portion of these commissions, because it would be in violation' of the contract, for the same reason the plaintiff can not reach them by garnishment. The act of 1901 (Acts of 1901, p. 55), while creating a lien on all future indebtedness of the garnishee to the defendant accruing up to the date of the answer, was only intended to keep garnishees from evading the law. It was never intended to restrain the right of parties to contract, nor to interfere with or abrogate their contracts when made, unless it appears that such contracts were made to evade or nullify the process of garnishment.

We have already alluded to the terms and nature of the contract. From the record it appears, without dispute, that the contract was operative more than a year before the attachment was sworn out, and perhaps even before the debt which Johnson owes the Grocery Company was created. Therefore the contract could not have been made to evade or avoid this garnishment. The defendant sold sewing machines for the garnishee,(but the sales were strictly on. commission. He used his own horse and wagon, paid his own taxes and expenses. He deducted his commissions before remitting the weekly balances. These commissions were not a debt due by the company to him. The moment they came into existence they were his own. They never had and never could belong to the garnishee. He could have given them to a purchaser of a machine by reducing the price of a machine that much. It was no concern of the company. Under his contract he could not become indebted or responsible to the company for any portion of the proceeds of a sale (or of all his sales) except that portion due them by the contract.

Under the contract and the evidence the garnishee was not indebted to the defendant at the time of the service of the summons of garnishment, nor did any debt accrue between the service of the summons and the date of the garnishee’s answer. Consequently the certiorari should have been sustained, and to overrule it was error. Judgment reversed.


text:
    260.
    DOUGLAS, AUGUSTA AND GULF RAILWAY COMPANY v. SWINDLE.
    1. The test of the sufficiency of a petition to resist a general demurrer is the ability of the defendant to admit all that is alleged therein and yet escape liability altogether. A general demurrer to the petition should not be sustained and the suit dismissed because the plaintiff would not be entitled to recover all he asks, if the petition sots up a good cause of action as to any portion of his demand. Judged by this rule, there was no error in overruling the demurrer to the petition as a whole.
    2. The special demurrers were properly overruled.
    3. A demurrer addressed to a particular paragraph of the pleadings is not necessarily, for that reason, a special demurrer. “A general demurrer enp.bles the party to assail substantial imperfections in the pleadings of the opposite side, without particularizing any of them in his demurrer; a special demurrer goes to the structure merely, and not to the substance, and obliges the party demurring to lay his finger on the very point.” Martin v. Bartow Iron Works, 35 Ga. 323.
    4. “Demurrer, being a critic, must itself be free from imperfections.”
    Action for damages, from city court of Nashville — Judge Peeples. February 2, 1907.
    Submitted April 1,
    Decided April 11, 1907.

      William H. Barrett, J. W. Quincey, for plaintiff in error.

      Hendricks, Smith & Christian, Spencer R. Atkinson, contra.
   Russell, J.

This is a suit to recover damages for personal injuries alleged to have been sustained by the plaintiff as a passenger on a train of defendant. Within the time required by law the defendant company demurred to the petition. The court overruled the demurrers, and the defendant company excepted. The question to be determined, therefore, m our search for error is, whether the court erred in overruling any of the demurrers or whether it erred in overruling them' all. There can be no possible doubt as to the ruling as to the first demurrer, which is denominated a general demurrer, and none as to the second, third, fourth, and fifth. And the seventh was met by a proper amendment. Upon our first reading of the twelfth paragraph of the petition and of the demurrer thereto, numbered sixth, we were inclined to think that the court erred in not sustaining that demurrer; but upon more mature reflection we are satisfied that the trial judge committed no error in likewise refusing to strike the twelfth paragraph. This paragraph is open to a special demurrer; and if a proper special demurrer thereto had been offered, it should have been sustained; but the demurrer insisted upon was a general demurrer. To have sustained it would have been to strike the entire paragraph, the major portion of which is properly alleged and is pertinent and germane to the cause of action.

The petition, in the first, second, third, and fourth paragraph, after alleging that the defendant company is a corporation having an office and agent in Berrien county, sets up that the petitioner was a passenger with a ticket, which had been surrendered to the conductor, entitling him to be carried from Sparks to Nashville, Ga. The train stopped at Massee, Ga., and, the weather being cool and it being unpleasant away from the fire, the plaintiff went to the stove for the purpose of warming, it being necessary for him to get near the stove to warm. He was standing with his face towards the west, when the employees of the defendant company running the train went on the side-track to get certain cars loaded with lumber to “make up” their train, and said employees carelessly “kicked” the loaded ears off the side-track onto the main line and allowed them to run wild down said main line at a rapid rate of speed without any one upon them to control them, and they collided with such force with the cars and a flat ear in front of the passenger-coach aboard which was the plaintiff that he was knocked off his feet, thrown backwards across the top of the stove in which was a fire and by which he was warming, and injured and damaged, as thereinafter set forth, in the sum of $10,000. The remainder of the petition is as follows:

“Sixth. That the ears of the defendant company were allowed to run wild or shoved in by the engine in such a rapid rate of speed until it bucked or doubled the flat car between the passenger-coach and the two box-ears attached to the flat between said box-car and said passenger-coach.
■ “Seventh. Defendant was further negligent in that when they Cricked’ said cars in and upon said main track or shoved them in and upon said line with their engine as aforesaid, they rang no bell, nor blew any whistle, nor gave any alarm by which the plaintiff could be on his guard, thereby throwing him backwards upon sáid stove in the manner and form aforesaid.
“Eighth. The plaintiff was injured and damaged as follows: That by- reason of said sudden and violent collision of the cars, caused by the carelessness of the defendant company and the throwing of the plaintiff against and upon the stove as aforesaid, the lumbar region of his body striking the top of said stove, break-jug two of his lower ribs on the left side of his spinal column, and breaking or fracturing the third rib and scalding and burning the lumbar region of his body, he is injured and damaged in the sum aforesaid.
“Ninth. The plaintiff, by reason of the aforesaid injuring, was unconscious for several minutes, and that he was unable to stand, walk, or navigate without assistance, and. that his spinal column is severely and permanently injured.
“Tenth. That by reason of the aforesaid injuries, that the spinal column of the plaintiff, at and near the lumbar region of his body, by reason of the concussion caused by the injuries aforesaid, has caused his spinal column to become the seat of the inflammation and pressure, thereby causing his spinal column, as aforesaid, to become quick and tender and easily hurt, your petitioner thereby suffering the most excruciating pains, which are permanent and lasting.
“Eleventh. That by reason of the injuries aforesaid, the concussions of the spinal column at the lumbar region have caused the plaintiff to lose almost entirely the use of his left leg, and that he can walk only by a violent effort in limping and dragging his leg as aforesaid.
“Twelfth. The plaintiff alleges, that, less than two years prior to his injuries as aforesaid, he was severely and almost fatally injured by the defendant’s road in the city cf Nashville, Ga., and that by reason of his last injury the'old wounds and injuries have been causing him great annoyance, pain and suffering.
“Thirteenth. That each of the hips of the plaintiff has unceasing and severe pains in them, caused by the injuries inflicted ■upon him as aforesaid, the seat of said injuries being in the’lumbar region of the spinal column of petitioner, as aforesaid described, .and all of which injuries are permanent and lasting, and causes your petitioner the most severe mental pain and suffering.
“Fourteenth. Your petitioner further shows that he was entirely without fault in the transaction, and that his injuries were ■caused by the wrong and negligence of the said defendant, its agents- and servants, as aforesaid, nor could he, by the exercise of ■ordinary care upon his part, have prevented the consequence to himself of the defendant’s negligence.
“Fifteenth. That petitioner at the time he sustained his injuries as aforesaid, was earning from $75.00 to $100.00; per month; that he was fifty years of age, and had a reasonable expectancy of -years of life.”

The defendant company filed the following demurrer; and the action of the court thereon is the error complained of.

“1. That there is no cause of action set out in the said petition. And said defendant demurs specially:
“3. Because it is not made sufficiently plain in paragraph sixth or elsewhere, what is meant by the allegation that it Tucked’ or doubled the flat ear between passenger-coach and the two box-cars.
“3. Because it does not appear in paragraph seven or elsewhere that there was any duty upon the defendant to ring a bell or blow a whistle or give any other alarm when it shoved or Ticked’ ears upon its main track.
“4. Because the said petition fails to show that the plaintiff did not know of the approach of the said cars to the coáeh in which he is alleged to have been standing, and of the alleged rapidity of motion of the moving cars.
“5. Because the said petition does not set forth sufficiently definitely in what way or manner the lumbar regions of his bqdy were injured.
“6. Defendant demurs to paragraph twelve as being irrelevant and impertinent, and prays that the same be stricken.
“7. Because it does not appear in paragraph fifteenth what was the age of plaintiff at the time of the injury.”

We shall consider these demurrers, so far as it -is necessary to further discuss them, seriatim.

The reading of the petition is absolute demonstration of the fact that there is no merit in the first paragraph of the demurrer. A cause of action is set forth in the petition, because its-allegations can not be admitted without the plaintiff being entitled to recovery. The plaintiff was a passenger, had paid his fare, and the railroad was bound for extraordinary diligence for his safely. The cars were negligently “kicked” against the car in which he was a passenger, and this negligence, as alleged, threw him against the stove, where he was warming, broke two of his ribs, and scalded and burned the lumbar region of his body, causing the petitioner the injuries aforesaid, and to entirely lose the use ef his left leg, and to suffer the most excruciating pains. Without the amendment stating petitioner’s age, he could only have recovered for pain and suffering; but the petition nevertheless set forth, to that- extent, a good cause of action and would resist a general demurrer. As sustaining the above decision, we cite, among many other cases which could be cited, Glenn v. Western Union Tel. Co., 1 Ga. App. 821; Ga. R. Co. v. Rayford, 115 Ga. 937; Ferrill v. Perryman, 34 Ga. 576; Eagle & Phenix Co. v. Welch, 61 Ga. 444; Pullman Car Co. v. Martin, 92 Ga. 161; Western Union Tel. Co. v. Jenkins, 92 Ga. 398; Bank v. O’Neal, 101 Ga. 673; Blackstone v. Central R. Co., 105 Ga. 380; S. C. & Ga. R. Co. v. Augusta Southern R. Co., 114 Ga. 420. The test as to whether a petition, can resist a general demurrer is whether the defendant could admit all that is alleged and escape liability. Glenn v. Western Union Tel. Co., supra.

There is no merit in the special demurrer numbered two, for the reason that the words “bucked” or “doubled” are words of such common usage as that knowledge of their meaning must be presumed. The third and fourth paragraphs of the demurrer will be considered together, and can be determined in a few words. Both of these grounds of the demurrer assumed that there was a duty on the part of the passenger to know of the approach of cars to the coach in which he was riding, and to govern his conduct accordingly. A passenger who is in his rightful place has the right to rely upon the protection of the carrier until he is informed of extraordinary danger.

The fifth special demurrer was properly overruled. It was addressed to the eighth paragraph of the petition, which alleges that the sudden and violent collision of the cars threw the plaintiff against the stove, the lumbar region of his body striking the top of said stove, scalding and burning the lumbar region of his body. We think the court was right in considering this a very definite statement designating the injuries and the portion of the body injured.

In the sixth division or subhead of the demurrer the defendant moves to strike the twelfth paragraph of the petition as being irrelevant and impertinent. We think that the court properly overruled this demurrer. The twelfth paragraph of the petition was subject to demurrer in so far as it stated or attempted to charge that defendant was the cause of his previous injury, and we can well see how the statement that his prior injuries were caused bj’ the defendant can be made prejudicial to the defendant. This latter portion of the twelfth paragraph is impertinent and irrelevant. It is wholly immaterial how the plaintiff came to be injured on a former occasion, or who occasioned the injury; but it is relevant and pertinent to the plaintiff’s case to state the fact that he was so unfortunate as to be in such physical condition as to require extraordinary diligence at the hands of the carrier. It is immaterial how his condition of physical weakness and suffering originated; but the fact is material that he had previously been injured and thereby his safety was more easily endangered and his suffering, if he should receive an injury, would likely be more acute. The fact that the resultant consequences were likely to be serious and permanent is relevant for the consideration of the jury. If the defendant has filed a special demurrer to that portion of the twelfth paragraph which is irrelevant, and pointed out the specific defect (the fact that that portion of the paragraph contained matter immaterial and prejudicial), for the reasons to which we have referred the court would have required an amendment accordingly. If the defendant intended to demur specially, he failed of his mark. That a demurrer is addressed to a special paragraph of a petition instead of to the petition as a whole does not of itself change it from a general to a special demurrer. The same charaeteristies which obtain as to the term “general demurrer/’ when applied to the petition as a whole, still pervade it when addressed to a particular paragraph. And the legal result is the same. If the controlling thought or prayer of the paragraph is pertinent and germane, such paragraph will not be stricken because some other portion of such paragraph is, for any reason, impertinent, immaterial, or even prejudicial, unless that portion of the paragraph which is legally objectionable is particularly and especially pointed out.

For these reasons the sixth demurrer was properly overruled, whether it be denominated a general or a special demurrer. If intended as a special demurrer, it is itself demurrable; it failed to lay its finger on the point and specifically mention (as able counsel does in his brief) wherein and for what reason paragraph twelve of the petition (which in part is relevant and pertinent) is “irrelevant and impertinent.” “Demurrer, being a critic, must itself be free from imperfections.” . If, as above stated, thp sixth demurrer was intended as a general demurrer, it was properly overruled, because it was proper for the plaintiff to refer to the fact that he had been previously injured, in illustration of his physical condition and as imposing upon the carrier the duty of additional diligence for his safety.. While it was improper for the plaintiff to state that such former injuries were caused by the defendant company, unless such allegations were relied upon as an additional cause of action, still, if the demurrer had been special, looking merely to the structure of the paragraph, it would have been within the power of the court to require the plaintiff to so amend the paragraph as to speak in accordance with his rights and the relief sought. If, as it appears, the statement ywas made ^simply to enable the plaintiff to charge the defendant with greater diligence, or to show that the plaintiff had suffered more pain by reason of his previous injury and thereby would be entitled to greater damages, the court would, no doubt, have caused the statement that those former injuries were caused by the defendant to be stricken from the petition. Or, if the plaintiff insisted that his suit asked for compensation for the former injury as an additional cause of action, the plaintiff would have had an opportunity to perfect the paragraph to meet that view of the case. The demurrer was not good unless it particularized the imperfections. As stated in Martin v. Bartow Iron Works, 35 Ga. 323, there is a clear distinction between a general and a special demurrer, which has no reference to whether'it is addressed to the whole of the petition or some particular part thereof. “A general demurrer enables the party to assail every substantial imperfection in the pleadings of the opposite side, without particularizing any of them in his demurrer. . . A special demurrer goes to the structure merely, and not to the substance, and . . obliges the partjr demurring to lay, as it were, his finger on the very point.” And Judge Erskine proceeds further to say, as showing the advantage of a special demurrer, that “when a party demurs specially, he may, in argument, attack substantial errors.” We regret that there was no special demurrer to the evident evil in the twelfth paragraph,-because every case should be tried without the introduction of matters extraneous or prejudicial, — confined strictly to the legitimate issues involved. But we are unable to say that the trial judge erred because he ruled according to law. And as he na doubt would have stricken that portion of the paragraph objected to by the defendant if his attention had been thereto properly and specially directed, so we have no doubt that the learned trial judge will, upon the trial of the case, exclude from the consideration of the jury those prejudicial elements pointed out by the defendant, and confine the evidence^ so far as that part of the paragraph is concerned, to its allegations. In any event, the defendant can not transmute the defect in its demurrer into an error on the part of the trial court. Judgment affirmed.


text:
    93.
    SOUTHERN RAILWAY COMPANY v. ROWE.
    1. Though the plaintiff, in a suit which had been properly removed from the State to the Federal court having concurrent jurisdiction of the cause of action in which suit was founded, voluntarily dismissed his case in the United. States court, it was nevertheless his right to bring another suit on the same cause of action in the State court at any time within the statute of limitations applicable to such action. This is true notwithstanding the damages in the second suit were laid in an amount which would prevent another removal to the Federal court.
    2. A cause of action dismissed in the United States court may be renewed in the State court without payment of the costs accrued in the Federal court. Civil Code, § 5043, imposing a penalty upon those who non-suit or dismiss tlieir eases, is not applicable to cases in the United States court. The words, “the plaintiff may recommence his suit,” refer to a suit between the identical parties that were involved in a former controversy in a court of the State of Georgia.
    - S. Where with apparent full knowledge of the existence of a ditch in a public road, and- without any emergency requiring it to be crossed, one endeavors to pass such an excavation, he will be treated as having voluntaily assumed all the usual risks incident to the attempt.
    4. Where it is clear from the allegations of the petition that the plaintiff’s injuries might have been avoided by the exercise of ordinary care on his part, a proper demurrer to the petition should not be overruled.
    5. Misfeasance is the improper doing of an act which the agent might lawfully do. Where an agent fails to use reasonable care or diligence in the performance of a duty, he will be personally responsible to a third person who is injured. His liability in such cases is put upon the ground that he is a wrong-doer and as such responsible.
    6. The railway company and its section-boss may be jointly. sued for damages resulting from the negligent and improper discharge of his duties by such boss. The boss as a wrong-doer is personally responsible to the party injured by his misfeasance resulting from failure to use reasonable care and diligence in the performance of his duty, and the company is responsible for the misfeasance ¡of its agent.
    7. The section-boss and a railway company can be jointly sued when the sole ground of the liability of the railroad company is the act of the section-boss alone.
    Action for damages, from city court of Hall county — Judge Prior. January 30, 1906.
    Argued February 11,
    Decided May 9, 1907.

      John J. Strickland, Ed. Quillian, for plaintiff in error.

      Reuben R. Arnold, Fletcher M. Johnson, contra.
   Russell, J.

The defendant in error brought an action against the Southern Eailway Company, in the city court of Hall County, for the recovery of $10,000 damages, returnable to the February term, 1906, of that .court. This action, upon petition, was removed to the circuit court of the United States, upon the ground that the defendant was a non-resident and that the sum in controversy exceeded $2,000. The order of removal was granted by the judge of the city court of Hall county, February 2, 1906. The ease was duly transmitted to the circuit court of the United States for the northern district of Georgia; and on March 3, 1906, the case was stricken from the docket of that court, upon the ground that there had been no proper service upon the defendant. The dismissal was ordered by his honor Judge Newman, “without prejuclice to the plaintiff to bring the case over again.” The action ■for $10,000 damages thus concluded was against the Southern Railway Company alone. On March 12, 1906, the defendant in ■error brought an action in the city court of Hall county ^gainst • the Southern Railway Company and one A. C. Collier, a section-boss of the defendant company, alleging that the defendants had endamaged him in the sum of $10,000. The allegations of the petition, so far as pertinent to the negligence and misfeasance of the defendants, are as follows:

(4) “The defendant Collier is in the employment of the defendant the Southern Railway Company, as its section-boss, and the injury hereinafter described occurred on account of the joint negligence of the defendants, the negligence being that of the defendant Collier in the capacity of section-boss, and the railway company, in negligently cutting the ditch as hereinafter described. (5) At said Green’s crossing the defendant had caused to be dug .a deep ditch right across the public road, and over a part of said crossing after it left the railroad tracks, and on the defendant railway company’s right of way, and upon the approach to said ■crossing. (7) The cutting of said ditch across said public road was done by and under the superintendence of the defendant Collier, acting on behalf of said Southern Railway Company; and the ■said ditch was about eight inches deep, and extended all the way across the road, and formed a dangerous obstruction to travel, and was negligence. (8) After cutting said ditch the said defendant Collier, acting as the agent of the defendant railway company, together with the section-forces under him, negligently left the .same open and negligently failed to cover the same in any way with plank or other covering, so that travelers upon the highway with vehicles could pass. Said ditch was in the middle of the road, and formed a dangerous obstruction to travel. (10) The •defendants were negligent in all the particulars aforesaid. Said ditch was cut upon the approach to the crossing, and was intended to run the water away from the track and road-bed of the defend.ant railway company. The cutting of said ditch was part of the railroad work for which said section-boss was' employed, and was part of the defendant railway company’s road work to keep its road-bed free from water and dampness and to prevent the water from ponding. But the said section-foreman was negligent in that he cut said ditch too deep, and in that he failed to cover the same and failed to protect it, and .left it open as a menace to travelers. (11) It is further shown that as to travelers upon said road the same was the only way provided for travel, and there was-no way around said ditch.”

The connection ■ of the plaintiff — his actings and doings at the-time of the alleged injury — is stated in paragraph nine of his petition, which is as follows: “On the 19th day of September, 1905, and about two o’clock in the afternoon, plaintiff was driving his-wagon along said public road; and when the same got upon said crossing and road and reached the ditch, the effect of said wagon-striking into said ditch, which was deep and abrupt, was to cause-the pole of the wagon to break, and as it broke the wagon was. partly wrecked, and plaintiff was thrown to the ground and caught in parts of the wagon, and the brake caught his leg, and he was thrown to the ground, his leg broken, and he was greatly and permanently injured.”

At the appearance term the defendants demurred to the petition, and also filed a plea in abatement. The demurrer is as follows: “(1) There is no cause of action set.out in plaintiff’s petition. (2) Plaintiff shows by the allegations in his petition that-if there was any negligence on the part of the defendants it was known to the plaintiff, and he could have avoided the same by the exercise, of ordinary care. (3) By his petition plaintiff shows-that the alleged ditch, which he says was negligently cut, was in Cull view, and the existence, condition, and depth known to him,, and that he took the risk when he drove over it, and can not recover. (4) From plaintiff’s petition it is apparent that plaintiff’s, injury was the result of an accident from causes unknown and from no negligence on the part of the defendants. (5) Plaintiff' does not allege any act against these defendants which was joint; he alleges no act against the defendant Collier, except an act of mere negligence, and no act against the defendant the Southern Railway Company, except its own responsibility for the negligence of its employee, and alleges no overt act of misfeasance against either; and for that reason the-joint action will not lie.”

This demurrer was overruled. The defendants’ plea in bar was, by consent, submitted to the presiding judge, who refused to sus’-' tain the same, holding that it was unnecessary that the costs due in the United States circuit court for the northern district of Georgia in the former suit, which was dismissed, should be paid before the institution of the pending suit. Exception is taken to the order overruling the demurrer, and to the refusal of the court to sustain the plea in abatement. We shall first consider the questions presented by the exception to the judgment on the plea in bar.

In this case the plaintiff, .1. E. Bowe, brought his suit each time for $10,000, so that evidently it was not his purpose to lay his damages in such an amount as would prevent removal to the Federal court. The joinder of Collier, the section-boss, a citizen of Georgia, under the ruling in the Grizzle case, 124 Ga. 737, in any event prevented a removal of the suit to the United States court. The decision of his honor Judge Prior, of the city court, in refusing to sustain the plea in bar, was right. In McIver v. Fla. R. Co., 110 Ga. 223, the Supreme Court decided that, “Though the plaintiff in a suit which had been properly removed from a State to a Federal court having concurrent jurisdiction of the cause of action on which the suit was founded was nonsuited, or voluntary dismissed his case in the United States court, it was nevertheless his right to bring another suit on the same cause of action in the State court at any time within the statute of limitations applicable to such an action. The above is true notwithstanding in the second suit the damages were laid in an amount which would prevent another removal to the Federal court.”

The plea in abatement was necessarily based on the idea that, because the costs were unpaid, the former suit was still pending; for the order of the United States judge in striking the former case from the docket expressly allowed the plaintiff (if the cause of action be the same) to recommence his action; and it was recommenced in six months. But in the case now before us the defendants were not the same as in the prior case. The Southern Railway Company was the sole defendant in the case dismissed in the United States court, and the Southern Bailway Company and A. C. Collier are joint defendants in the case now under investigation. The plea in bar from its very nature was founded upon the maxim, “nemo debet bis vexari, si constat curias quod sit pro una et eadem causa.” No'one ought to be annoyed twice if it appears to the court that there is only one and the same cause of action. When we consider that the reason for the rule (that the pendency of a prior suit is good cause of abatement) is that a second suit is unnecessary and therefore oppressive, it must be plain that the parties must be the same although the maxim only uses the term cause of action. It will not often happen, where the parties are not the same, that the cause of action can be said to be identical.

Was the payment of the costs due in the United States court, in' the former suit brought by J. E. Rowe against the defendant Southern Eailway Company, a necessary prerequisite to the prosecution of this case? Or, to state the question differently, is there ever any obligation on one whose action has been either voluntarily or involuntarily dismissed in the United States court to pay the costs therein accrued before recommencing practically the same cause of action in the State court? We think not. .We state the question broadly, so that the answer will be general and apply to any and all eases brought in a foreign jurisdiction. The ’trial judge could well have overruled the plea in bar upon the ground that there was no identity of parties in the two cases and no identity of cause of action, but he put his ruling entirely upon the ground that it was unnecessary to pay the costs in the Federal court before recommencing the suit in the State court; and we think his decision in this regard was correct. Section 5043 of the Civil Code, which requires the payment of the costs in suits recommenced in the State courts, is a measure for the benefit of the State coiirts and their officers, and is perhaps required as a pledge of the good faith of the suitor. A cause of action dismissed in the United States court may be renewed in the State court without payment of the costs accrued in the Federal court, because the courts of the United States' — as are those of a sister State— are courts of a foreign jurisdiction. The provisions of the Civil Code, § 5043, imposing a penaltjr upon those who nonsuit or dismiss their eases are not applicable to cases in the United States court. The words, “the plaintiff may recommence his suit,” refer to a suit between the identical parties that were involved in a former controversy in a Georgia court. In so far as anything said in the Cox case (Cox v. R. Co., 68 Ga. 448) may appear to rule to the contrary it was obiter and “is not binding as authority.” McIver v. R. Co., 110 Ga. 227. With the payment or collection of the costs in the courts of foreign jurisdictions our courts are not concerned. The non-payment of the costs in the United States court was therefore immaterial, and the finding of the judge of the city court of Iiall county against the plea was correct. The Federal courts derive their power and jurisdiction from a different sovereignty from that of the State courts. “In that sense they are foreign jurisdictions in like manner as the courts of different States are foreign to each other; therefore the pendency of a prior suit in a Federal court will not abate a suit subsequently brought in a State court between the same parties and for the same cause of action, although the two courts may sit in the same State and have the same territorial jurisdiction.” International & G. N. R. Co. v. Barton, 57 S. W. 292. Therefore, even if the prior suit had been between identically the same parties and had still been pending in the United States court, the plea in bar would not have been good. See 1 Cyc. 36, 2; Cooper v. Newell, 173 U. S. 355 (19 Sup. Ct. 506, 43 L. ed. 808); Gordon v. Gilfoil, 99 U. S. 169 (25 L. ed. 383); Hyde v. Stone, 20 How. 170 (15 L. ed. 874); The Kalorama, 10 Wall. 204 (19 L. ed. 944); Stanton v. Embry, 93 U. S. 548 (23 L. ed. 983); Insurance Co. v. Harris, 96 U. S. 331 (24 L. ed. 959); Short v. Hepburn, 21 C. C. A. 252, 75 Fed. 113; Latham v. Chaffee (C. C.), 7 Fed. 520; Logan v. Greenlaw (C. C.), 12 Fed. 10; Weaver v. Field (C. C.), 16 Fed. 22; Hurst v. Everett (C. C.), 21 Fed. 218; Briggs v. Stroud (C. C.), 58 Fed. 720; Coe v. Aiken (C. C.), 50 Fed. 640; Pierce v. Feagans (C. C.), 39 Fed. 587; Beekman v. Railway Co. (C. C.), 35 Fed. 3; Rejall v. Greenhood (C. C.), 60 Fed. 786; Merritt v. Barge, 24 C. C. A. 530, 79 Fed. 228; Zimmerman v. So Relle, 25 C. C. A. 518, 80 Fed. 419; Hughes v. Green, 28 C. C. A. 537; Bank v. Bonney, 101 N. Y. 173, 4 N. E. 322; Litchfield v. Brooklyn, 34 N. Y. Supp. 1090; Checkley v. Steamship Co., 60 How. Pr. 511; Wood v. Lake, 13 Wis. 84; Wurtz v. Hart, 13 Iowa, 518; Caine v. Railway Co. (Wash.), 41 Pac. 904.

According to the allegations of the ninth paragraph of this petition, the plaintiff iá not entitled to recover from the defendants for any injury he may have received, because the result (if not directly traceable to his own negligence) could have been prevented by the use of ordinary care and diligence for his own protection. The plaintiff says he was riding along the road, and when he reached the ditch and drove into it (instead of even pausing to examine its size and depth) it appears that he drove, right on and was thrown out of his wagon and his leg was broken. No reason is given why he could not see it, nor is it stated that he could not or did not see the danger. There was nothing, so far as appears in the record, which prevented him from stopping his team and thereby avoiding the ditch, and no emergency is suggested which rendered the crossing of the ditch imperative. We do not know the purpose of the plaintiffs drive; but it is plain from thé allegations of the petition, that, whether it was business or pleasure, it can only be inferred that he knowingly, deliberately, and (if the ditch was as dangerous as alleged) recklessly assumed all the risk incident to his undertaking. The allegations of the petition make a ease very similar, but certainly not as strong a case upon the facts as that of Sheats v. Rome, 92 Ga. 535, in which, the judgment dismissing the petition because it set forth no cause of action was affirmed. In the Sheats case the Supreme Court held, that, “Although it was gross negligence for the municipal authorities of a city, after causing a ditch five feet wide and three or four feet deep to be cut across a public sidewalk, to leave it open, in this condition for several weeks, a female who was perfectly aware of the existence, width, and depth of the ditch, and who either attempted to jump across it, or stepped into the bottom of it on a. rock and tried to step out, and was thus injured, has no right of action against the city. It is clear that by the exercise of ordinary care on her part the injury might have been avoided.”

In Kent v. So. Bell Tel. Co., 120 Ga. 980, where the greater portion of the danger was concealed by the peculiar manner in which the ditch was cut and was not apparent to the plaintiff, the Supreme Court held that the petition set forth a cause of action, because these allegations took it out of the rule declared in Sheats v. Rome, supra, and Cook v. Atlanta, 94 Ga. 613, but reaffirmed the doctrine of those cases by saying that the plaintiff could not recover if “she knew what was before her; with full knowledge she assumed the risk, and could no't put the injurious consequences, upon another, even though that other had been at fault in creating the condition out of which her damage arose. But the petition does not make such a case.” And in the first headnote the court held, that “Where, with full knowledge of the existence of a ditch, in a highway, and without any emergency requiring it to be crossed, one endeavors to pass over the excavation, he will be treated as having voluntarily assumed all the usual risks incident to the attempt.” We are not prepared to hold that a, comparison can be instituted dependent on sex between the degree of care chargeable to man as compared with woman, but it is worthy of note that the plaintiffs in both the Sheats and the Kent cases were women; and if there be a presumption either way, it' would seem that we should expect to find more coolness, discretion, and prudence in man than in woman. And while, in our opinion, all issues of negligence or diligence should be referred to the jury, still where, under the allegations of the petition itself, the contributory negligence of the plaintiff is so apparent and so complete as to render a recovery a legal impossibilit)1', a timely demurrer should be. sustained, and taxpayers and litigants be saved from useless expense and annoyance. Where with apparent full knowledge of the existence of a ditch in a public road, and without any emer-' gency requiring it to be crossed, one endeavors to pass such an ex-, oavation, he will be treated as having voluntarily assumed all the usual risks incident to the attempt. We think, therefore, that the court erred in not sustaining the demurrer upon its first three grounds. It is apparent from the allegations of the petition, which we have quoted, that the plaintiff could, by the exercise of ordinary diligence, have avoided the injury of which he. complains. . There is no allegation that on account of darkness or blindness, or for any other reason, the plaintiff or any other person could-not have seen the ditch cut by the defendant company and its-, section-boss; nor is any emergency requiring the crossing of the ditch alleged. The judgment upon the demurrer should, have .been controlled by the decision in Kent v. Tel. Co. supra, and. numerous other decisions of our Supreme Court to the same effect,.

In the fifth paragraph of the demurrer it was insisted specially that the petition should be dismissed because no act is alleged against these defendants which was joint, no action alleged against the defendant Collier, except an act of- mere negligence, and no act against the defendant the Southern Railway Company, •except its responsibility for the negligence of its own employee; that the allegations of the petition make, at best, only a case of .■ nonfeasance against the defendants, and do not charge any act of misfeasance against either defendant, and. consequently-the joint action will not lie. In the case of Southern Ry. Co. v. Grizzle, 124 Ga. 735, in which the judgment of the writer (who was then upon the circuit bench) upon the same points as are involved in the present demurrer, was affirmed by the Supreme Court, every phase of the questions involved is so lucidly presented in the opinion which was- delivered by Justice Cobb, and the decision is so amply supported by authorities, as to leave no open question as to what is the law. Measuring the petition by the requirements of the decision in the Grizzle case and its citations,' it can well withstand the fifth paragraph of the demurrer. The learned counsel for plaintiff in error asserts in his brief that “no case has yet gone far enough to hold a railroad and its employee jointly liable for an act of this character, where there was no claim of there being any joint action or any misfeasance on the part of either defendant,” and contends that even the decision in the Grizzle ease, supra, confirms this statement. We can not concur in this view. That the employer may be jointly liable for the misfeasance of an employee was decided in Central Ry. Co. v. Brown, 113 Ga. 414. In that case it was held that the railway company and a passenger with whom the conductor participated in an as-. sault on the plaintiff could be jointly sued. And yet the liability of the company was entirely due to the act of the conductor. It is insisted, however, that while an act, such as an assault, is necessarily misfeasance, the allegations in the petition now under consideration, and especially that the section-boss failed to cover over the ditch, only make a case of nonfeasance, and that an agent is not liable to third persons for mere nonfeasance. It must be remembered that misfeasance may be negligence merely. One distinction between nonfeasance and misfeasance, and that misfeasance may be due to neglect, is aptly pointed out by Judge Virgin in delivering the opinion in Gregor v. Cady, 82 Me. 131 (17 Am. St. R. 466), quoting from Smith’s note in Coggs v. Bernard, Smith’s Leading Cases (6th Am. ed.), 355, “A distinction exists between nonfeasance and misfeasance; the one being a total omission to do an act which one gratuitously promises to do, and the other a culpable neglect in the execution of the act. If.a party makes a gratuitous engagement, actually enters upon the execution of the business, and does it amiss, through the want of due care, by which danger ensues to the other party, an action will' lie for misfeasance.” In Ellis v. McNaughtor, 15 Am. St. R. 308, 76 Mich. 237, 242, and Lough v. Davis, 94 Am. St. R. 848, 30 Wash. 204, it was held that misfeasance may involve, to. some extent, the idea of not doing, as where an agent, while engaged in the performance of his undertaking, does not do something which it is his duty to do under the circumstances, as, for instance, when he does not exercise that care which a due regard for the right of the other party requires. Such negligence as would be actionable in any relation of life is misfeasance by not doing. Mechem on Ag. § 572. Another distinction drawn by Metcalf, J., in Bell v. Josselyn, 69 Mass. 309 (63 Am. Dec. 742) is, that “nonfeasance is the omission of an act which a person ought to do; misfeasance is the improper doing of an act which a person might lawfully do.” In so far as the digging of the ditch in this case is concerned (if the plaintiff were not precluded from recovery by his own apparent negligence), it might be lawful to dig it; but the section-boss would be guilty of misfeasance for which the employer would be liable if it were improperly dug or improperly guarded, or if, without regard of the right of others, it was negligently left in such condition as to endanger the public or passers by. Misfeasance is the omitting to do an act as it. should be done. Coite v. Lynes, 33 Conn. 109, 114; Minkler v. State, 14 Neb. 181; Ill. Cen. Ry. Co. v. Foulks, 191 Ill. 57; Commonwealth v. Williams, 79 Ky. 47, 42 Am. Rep. 204; Burns v. Petchal, 75 Hun, 437 (27 N. Y. Supp. 499, 503). The ruling in Osborn v. Morgan, 130 Mass. 102, is squarely in point, and demonstrates that the allegations of negligence in the petition made a case of misfeasance for which the servant would be liable, and for which, consequently, the employer would be liable also. Says Chief Justice Gray, delivering the opinion in the Osborn case: “If the agent once actually undertakes and enters upon the execution of a par-' ticular work, it is his duty to use reasonable care in the manner of executing it, so as not to cause any injury to third persons, which may be the natural consequence of his acts; and he can not, by abandoning its execution midway and leaving things in a dangerous condition, exempt himself from liability to any person who suffers injury by reason of his having so left them without proper safeguards. This is not nonfeasance or doing nothing, but it is misfeasance, doing improperly.”

As a result of our investigation we unhesitatingly conclude that the petition was not subject to demurrer upon the ground that no misfeasance was alleged, nor because the railway company and its section-boss were not properly joined. So far as that portion of the demurrer is concerned, the trial judge did not err in overruling it. We summarize: Misfeasance is the improper doing of an act which the agent might lawfully do. Where an agent fails to use reasonable care or diligence in the performance of a duty, he will be personalty responsible to a third person who is injured. His liability in such cases is put upon the ground that he is a wrong-doer and, as such, responsible. Southern Ry. Co. v. Grizzle, 124 Ga. 737.

This court has also held (in the Miller case, cited below), that a corporation may be sued 'jointly with its employee. So the railway company and its section-boss may be jointly sued for damages resulting from the negligent and improper discharge of his duties by such boss. The boss, as a wrong-doer, is personalty responsible to the party injured by his misfeasance resulting from failure to use reasonable care and diligence in the performance of his duty, and the company is responsible for the misfeasance of its agent. The section-boss and a railway company can be sued when the sole ground of the liability of the railroad company is the act of the section-boss alone. See Ry. Co. v. Miller, 1 Ga. App. 616; Morrison v. Ry. Co., 74 Pac. 1064; Howe v. R. Co., 60 L. R. A. 949; Able v. Ry. Co., 73 S. C. 173; Chesapeake & O. R. Co. v. Dixon, 179 U. S. 131.

But, for the reasons already stated, we think the court erred in overruling the first, second, and third paragraphs of the demurrer, as it plainly appears from the allegations of the petition (which indeed should be most strongly construed against the petitioner) that the exercise of ordinary diligence by the plaintiff, as construed by the Supreme Court, would have obviated the injury of which he complains, in that it does not appear that he did not know of the ditch and could not see its condition, or allege any unusual emergency making it necessary for him to take the risk of crossing such a ditch. The petition avers that the road he was travel-ling was, “as to travelers upon said road,” the only way, but gives no reason why plaintiff had to travel. The judgment of the lower court in overruling the demurrer is therefore Reversed.


text:
    64.
    HARVEY v. THOMPSON.
    1. “The act of August 13, 1904 (Acts of 1904, p. 100) entitled, ‘An act providing for the situs of debts due to non-residents for the purposes of attachment, and for other purposes,’ is not unconstitutional for the reason that it is an attempt to pass an act having extra-territorial effect. And, as applied to a case where it is sought to subject wages earned in another State by an employee of a railway company having a line of a railway in that State and in this State (the wages being for services performed in the other State by a locomotive engineer who, together with his family resided there, and being payable there), the act is not unconstitutional for the reason that it deprives such person of his property without due process of law.” Harvey v. Thompson, 128 Ga. 147.
    2. The express purpose of the above-stated act was to fix the situs of a debt at the residence of the garnishee, and it thus effectually overruled those decisions (such as Central Ry. Co. v. Brinson, 109 Ga. 354, Kyle v. Montgomery, 73 Ga. 337, and Wells v. R. Co., 74 Ga. 548) in which it had previously been held that the situs of a debt was the domicile of the creditor.
    3. A garnishment can be lawfully served upon a foreign corporation by making personal service upon any agent of the company in this State; and such corporation, doing business in this State, may for the purposes of suit be treated as a resident of this State, and of any county therein in which it has an agent upon whom service can be perfected. In such suit it is immaterial that the principal debtor and garnishee are both non-residents, and that the debt garnished was contracted and is payable elsew'here, .and in- a State by the laws of which it would be exempt from garnishment. Harris v. Balk, 198 U. S. 215.
    4. A statute of Florida, declaring that “no writ of attachment or garnishment or other process shall issue from any of the courts of this State to attach or delay the payment of any money or other thing due to any person who is the head of a family residing in this State when the money or other thing is due for the personal labor ox-services of sxtch person,” is not an exemption as to the -wages themselves, but merely an inhibition against the issuance of process by the coui-ts of Florida. But even if such statute of a sister State provided for an exemption from liability to garnishment, the exemption is a personal privilege as contradistinguished from a right; the law conferring it has no extra-territoi-ial force and can have only a local application. Kyle v. Montgomery, 73 Ga. 337.

      5. Under the provisions of the act of 1904, supra, with reference to garnishments, neither the exemption of this State nor that of the State of his residence affords any protection to a non-resident debtor.
    Certiorari, from Chatham superior court — Judge Carm. February 15, 1906.
    Submitted February 4,
    Decided May 16, 1907.

      S. N. Gazan, for plaintiff in error. Travis & Travis, contra.
   Russell, J.

The following question was, in conformity to law,

certified to the Supreme Court, to the end that it might be dec-ided whether the act in question (Acts 1904, p. 100) is or is not unconstitutional for anjr reason referred to in the question: “Is the act approved August 13, 1904, entitled ‘An act providing for the situs of debts due to non-residents for the purposes of attachment, and for other purposes/ (found in Georgia Laws, 1904, p. 100), contrary either to the constitution of the United States or to the constitution of the State of Georgia, for the reason that the legislature of Georgia has no authority or power to pass an act having extra-territorial effect? Also, is said act, as applied to a case where it is sought to subject wages earned in the State of Florida by an employee of a railroad company having lines of railway, offices, and agents, both in the State of Florida and the State of Georgia (the wages being earned by a locomotive engineer whose entire service was performed in the State of Florida, whose wages by contract were payable there, and who, together with his family, resided in that State), contrary to section 1, paragraph 3, of article 1 of the. constitution of the State of Georgia, as embodied in section 5700 of the Code of 1895, or in violation of the clause of the constitution of the United States upon the same subject-matter ?”

The Supreme Court having, m response to these questions instructed this court that the act of 1904 providing for the situs of debts due to non-residents for the purpose of attachment (Acts of 1900, p. 100), is not unconstitutional, either for the reason that it is an attempt to pass an act having extra-territorial effect or because it denies due process of law, this court will proceed to deal with the other assignments of error.

As stated by Judge Cobb in delivering the opinion in this case, the situs of a debt, prior to the passage of the act of 1900, had been held in Georgia to be the place where the creditor had his domicile. It was manifestly the intent of the legislature to declare to the contrary, that in proceedings by garnishment the situs of a debt should be at the residence of the garnishee.

It is well settled that a foreign corporation, such as the Seaboard Air-Line Railway, doing business in this State, may, for the purpose of suit, be treated as a resident of this State and of any county in this State in which it has an agent upon whom service can be effected. Saffold v. Scottish American Company, 98 Ga. 787; Reeves v. Southern Ry. Co., 121 Ga. 561. A garnishment can be legally served upon a foreign corporation by making personal service upon any agent of the company in this State. Cathcart v. C., H. & D. Ry. Co., 108 Ga. 255, and citations. As to the effect after service, this ease, in our opinion, is controlled by the ruling in Harris v. Balk, 198 U. S. 215, where it was held that it was not material that both the principal debtor and the garnishee were non-residents, or that the debt was contracted and payable in another State, and in a State by the laws of which it would be exempt from garnishment. In rendering the opinion, Mr. Justice Peckham says: “We do not see the materiality of the expression 'situs of the debt/ when used in connection with attachment proceedings. If by situs is meant the place of the creation of the debt, that fact is immaterial. If it be meant that the obligation to pay the debt can only be enforced at the situs thus fixed, we think it plainly untrue. The obligation of the debtor to pay his debt clings to and accompanies, him wherever he goes. He is as much bound to pay his debt in a foreign State, when therein sued upon his obligation by his creditor, as he was in the State where the debt was contracted. We speak of ordinary debts, such as the one in this case. It would be no defense in such suit for the debtor to plead that he was only in the foreign State casually or temporarily. His obligation to pay would be the same whether he was there in that way or with the intention to remain.' Ii is nothing but the obligation to pay which is garnished or attached. This obligation can be enforced by the courts of the foreign State after personal service of process therein, just as well as by the courts of the domicil of the debtor.” The learned counsel for the plaintiff in’error lays much stress on the fact that his answer and motion to dismiss, as well as plea to the jurisdiction, were filed with the express protestation that he does not hereby admit the jurisdiction of the court, either as to his person or as to the fund or property in controversy; and relies upon the decision of High v. Padrosa, 119 Ga. 648, to the effect that a plea to the merits in an attachment ease sued out on the ground of non-residence, and which is filed with a distinct protestation that no jurisdiction has been acquired by the levying of the attachment, does not have the effect to admit jurisdiction and will not authorize a personal judgment against the defendant. It does not appear that there was personal service in the Padrosa case. In this case, after the defendant, George M. Harvey, had filed his defense, motion, and the plea, containing the immunity-from-judgment clause just quoted, the plaintiff served him with a notice of the time and place of the hearing of the attachment under the provision of the Civil Code, § 4557, for the purpose of obtaining a general judgment in personam. We agree with the learned counsel that this service is ineffectual for the purpose of obtaining jurisdiction of the defendant, because it was not had until court day and after Harvey had filed his plea. It was too late. But it is not too late for the plaintiff to obtain a judgment in rem; and as the judgment is not exhibited in the record, we are unable to say that a judgment of that kind was not rendered. Furthermore, it, appears that the garnishee, the Seaboard Air-Line Railway, answered the garnishment and made no point upon the jurisdiction of the court; and in Phillips v. Thurber, 56 Ga. 393, the court held that “if the garnishee, without objection to the jurisdiction, answers out of the county of his residence, neither the principal debtor, the defendant, nor'the claimant of the fund, who had dissolved the garnishment by giving bond and security, can urge the garnishee’s non-residence, by plea to the jurisdiction, or otherwise as a means of defeating the garnishment proceedings.” In all the Georgia decisions, where the doctrine of situs has been held to be a bar to garnishment proceedings, it appears that there was no service upon the principal debtor. The controlling questions presented by the certiorari, which was sustained by the judge of the superior court, were as follows: (1) That the act of 1904, if constitutional, has no application to a case where there is no property or fund within the jurisdiction of the court. (2) That, said fund, if legally brought into a Georgia court, can not be subjected to the payment of the debt, because said fund is exempt, from garnishment. In support of the first contention, the learned counsel for plaintiff in error insists that the act of 1904 has no application to a case where there is no property or fund within the jurisdiction of the court, none earned in Georgia, and none having a situs in Georgia; and that therefore the court erred in holding said fund subject to seizure in Georgia, when said fund was not within the jurisdiction of the Georgia courts. ■ Counsel cites the case of Central Railroad Co. v. Brinson, 109 Ga. 354, to sustain the position that the situs of the debt is at the residence of the creditor. We think this decision is rendered nugatory by the act of 1904, and that such was the manifest purpose of that act. He next insists that there must be property in the'hands of the garnishee within the jurisdiction of Georgia, referring to Wells v. East Tenn. R. Co., 74 Ga. 548, and the Brinson case, supra, in which, as we have already stated, it was ruled that a non-resident corporation is subject to the jurisdiction of this State in any county where it has an agent upon whom service can be perfected, and the answer of the garnishee admitted sufficient funds in its hands to pay the debt. Moreover, under the principle ruled in the Balk case, supra, the debt itself was collectible here. It is true that the amendment of the act of 1904, passed by the legislature of 1906 (Acts of 1906, p. 120), was intended to protect such debts as the one now in question, but, unfortunately for the plaintiff in error, it can not have a retroactive effect for Iris benefit. It was not passed until 1906, and the judgment in his case was rendered in 1905. Unfortunately, too, for the plaintiff in error, the decision in the case of Wells v. East Tenn. R. Co., 74 Ga. 548, is overruled by the act of 1904. We think, therefore, that, both as a matter of law and also by virtue of the garnishee’s answer, the debt due by the garnishee to the debtor was within the jurisdiction of the courts of this State.

In reply to the second assignment of error it need only be said that the exemption privilege of Florida will not be enforced here. It has been decided in express terms that the exemption privilege of Georgia does not extend to a citizen of another State. The evidence in this case shows the plaintiff to be a citizen of another State, to wit, of the State of Florida; but under the act of 1904, the fund sought to be garnished is not a Florida fund, and if it is reached in this State by any process, such as garnishment, even though such funds are found in the hands of a nonresident, it has attached to it none of the privileges it enjoyed in Florida. The act of 1904 (Acts 1904, p. 100) destroyed the persuasive authority of the rulings in which it was held that “when the situs of a debt is changed from the State or jurisdiction in which it was created, to some other State or-jurisdiction, all its incidents and conditions, materially affecting it, will be preserved with, it, and its interpretation, scope, and validity will be governed by the lex loci contractus.” The rule that “if the debt is exempt from judicial process in the State where it is created, the exemption will follow the debt, as an incident thereto, into any other State or jurisdiction into which the debt may be supposed to be carried,” announced in Mo. Pac. Ry. Co. v. Sharitt, 30 Central Law Journal, 520, Drake v. Ry. Co., 69 Mich. 168, Wright v. Ey. Co. 27 N. W. 90, and other cases, does not prevail in this State.

It was the purpose of the act of 1904 to fix the situs of a debt due by the garnishee to the garnishing creditor’s debtor in this State, and in this State to subject it to tire laws of this State for all purposes. The exemption from garnishment, applicable to laborers of Georgia, does not apply to citizens of another State. For these reasons, the judgment of the court below was right.

Judgment affirmed.