author: Russell, J. Hill, C. J., and Powell. J.,

text:
    35.
    WOLFE v. GEORGIA RAILWAY & ELECTRIC CO.
    1. (a) A common carrier is responsible for the proper treatment of its passengers, and is bound to protect them from insult as well as from physical injury. Where the insult ■ is offered by one of the carrier’s servants, the duty of protection is even stronger and more binding than where the offending party is a fellow-passenger; and for humiliation or wounded feelings, caused by such insult, a passenger is entitled to recover.
    {&) It is immaterial whether the insult .is caused by malice or is the result of negligence on the part of the carrier’s servant. Injury caused by omission to protect is none the less actionable than that caused by commission.
    2. (a) In enforcing Renal Code, §527, requiring the separation of races, the conductor is still the agent and servant of the corporation, and the liability of the corporation for his acts as such is not diminished by the delegation of police power. The police power is granted to better-enable the corporation to discharge its duty of protecting its passengers, but the burden of exercising extraordinary diligence in the protection of the passenger is not lightened. (By Hill, C. J., and Powell, J.: If an honest mistake be made after extraordinary diligence has been exercised, the carrier would not be liable.)
    (&) Good faith unaccompanied by freedom from fault (that degree of freedom from fault recognized by law as applicable between carrier and passenger) is no excuse for an insult offered by a servant of the carrier to a passenger who suffers injury; the good faith of the transaction can only be considered in mitigation of the damages.
    3. (a) To call a white man a negro or to intimate that a white man is. of African descent, under certain circumstances, may be an insult* and, dependent upon th’e circumstances, may be actionable.
    (6) An insult does not necessarily consist in the use of language imputing a crime. It more generally consists in the use of language affecting the social status and personal feelings or the business relations of the person insulted.
    (c) The courts can take judicial notice of social status and of the superiority and inferiority of races, without affecting the civil rights of the citizen. An existent fact, which is per se the subject neither of legislation nor of adjudication, can be judicially known and recognized as a. fact.
    Action for damages, from city court of Atlanta — Judge Reid. May 10, 1906.
    Argued January 14,
    Decided October 3, 1907.

      Dorsey, Brewster, Howell & McDaniel, for plaintiff.

      Rosser & Brandon, Walter T. Colquitt, for defendant.
   Russell, J.

Nathan F. Wolfe, the plaintiff, brought a suit for damages against the Georgia Railway & Electric Company. The defendant filed a general demurrer on the ground that no cause of action was alleged, and the court below sustained it. This, judgment is brought to this court for review; and the question, to be determined is,- does the plaintiff’s petition set out a cause of action? The plaintiff alleged, that on Monday night, June 27, 1904, he, accompanied by his sister, boarded a car of the defendant at the corner of Garnett and Whitehall streets for the purpose of being transported to a point on Highland avenue, reached by one of the lines of defendant; that he paid to the conductor on the car the fare charged for the transportation of himself and sister, and asked for and received transfers to the Houston street ear; that he was duly transferred to this car, which had two- long seats, one on each side of the car, with a broad aisle between; that he and his sister entered the car from the rear, and walked forward and took seats in the front part of the car;, that there is a regulation of the defendant company that white passengers will “seat from the front,” and negro passengers will “seat from the rear” of the car; that when he and his sister had seated themselves, the conductor of said car came to him and took up the transfers for himself and sister, and at the same time the conductor remarked to the petitioner, “You can not sit there;” that petitioner arose, thinking there was something the matter with the seat, and asked the conductor, “Where do you wish me to sit?” The conductor thereupon replied, '“You must sit upon the rear portion of the car.” Petitioner responded, “Where?” To which the. conductor replied, “Beyond the white gentleman.” Petitioner thereupon responded, “Why do you wish me to sit there?” Whereupon the conductor replied, “It is all right; sit down there,” indicating a space between the last white man and a negro. Whereupon the petitioner and his sister both asked, “What is this (for?” The conductor replied, “Because white people seat from the front and negroes from the rear of the car.” Petitioner asked, “What has that to do with me ?” And the conductor responded, “Haven’t I seen you in colored company?” Petitioner’s sister then addressed the conductor as follows: “Do we look like colored people?” And petitioner, for the first time understanding the import of the conductor’s language, demanded an explanation and apology. Whereupon the conductor stated that he might be mistaken, but that he thought he had seen the petitioner with some colored people. This colloquy took place in the car in the presence of all the passengers, and in a sufficiently loud tone to be heard all over the car. The petitioner further alleges negligence on the part of the company, and sets out grounds under which he claims a right of recovery.

The allegations in this case present to this court circumstances which have never heretofore been presented to the courts of this State, and in an extended search for authorities we have been unable to find a ruling by any court of last resort which deals with the main question involved in this case. The central point in this case, the pivot on which the decision must turn, is, whether it is insulting to publicly call a white man a negro. Two other questions, it is true, are presented in the record; but they are only incidental to the main question, which we have stated above. The two other issues relate to the liability of a carrier for insulting conduct towards its passengers on the part of its agents or servants, and involve a consideration of Penal Code, §527, as affecting the liability of the carrier for the acts of its servants while exercising police power. There are therefore three questions in the case: (1) Is the defendant street-ear company liable for insulting conduct on the part of its servants? (2) In the -enforcement of Penal Code, §527, is the conductor an officer of the State in any such sense as to relieve the corporation from liability for the malperformance of his acts while exercising police power? (3) Is the language alleged to have been used by the conductor, reasonably construed, necessarily insulting or so probably insulting and humiliating when publicly used as that the question as to whether it caused pain, humiliation, and disgrace should have been left to the jury?

There is' no difficulty whatever in answering the first question. It is the duty of a common carrier to protect his passengers from insult, so long as they are passengers, not only from insult by fellow-passengers, but from insult at the hands of the carrier’s own agents. The principle is clearly laid down in our own State in the decision in Cole v. Atlanta & West Point R. Co., 102 Ga. 474, and cases therein cited; and the court quotes with approval from Goddard v. Grand Trunk Ry., 57 Me. 214. See also Savannah Railway Co. v. Quo, 103 Ga. 125; and A. & W. P. R. Co. v. Condor, 75 Ga. 51. A carrier is as much bound to protect and shield from attack the passenger’s feelings as his person; and if it subjects him to the pain and humiliation of being insulted or abused, it is liable for this negligent omission on the part of its servants to perform towards the passenger the duty of protection imposed by law; and it is immaterial whether the injury be wilful and wanton, whether it be intended or unintentional. From numerous authorities which we have examined,, the following abundantly sustain the statement we have just made. Plutchinson on Carriers, §§ 595, 596; Thompson on Negligence, § 3186; San Antonio Traction Co. v. Crawford, Tex. Civ. App., 71 S. W. 306; Texas Ry. Co. v. Tarkington, Tex. Civ. App., 66 S. W. 137; Booth on Street Railways, § 372; 2 Sedgwick on Damages, 637. In Chamberlain v. Chandler, 3 Mason, 242, Judge Story, delivering the opinion, in discussing the duties, relations, and responsibilities which arise between the carrier and passenger, said: “In respect to passengers, the case of the master is one of peculiar responsibility and delicacy. Their contract with him is not for mere special •room and personal existence. . . It is a stipulation not for toleration merely, but for respectful treat-anent; for that decency of demeanor which constitutes the charm of social'life; for that attention which mitigates evils without reluctance and that promptitude which administers aid to distress. . . It is intimated that all these acts, though wrong in morals, are yet acts which the law does not punish; that if the person is untouched, if the acts do not amount to an insult and battery, they .are not to be redressed; that the law looks on them as unworthy of its cognizance. The master is at liberty to inflict the most severe mental sufferings in the most tyrannical manner; and yet if he withholds a blow, the victim may be crushed by his unkindness. He commits nothing within the reach of civil jurisprudence. My opinion is that the law involves no such absurdity.”

Upon the second proposition it is insisted by learned counsel for defendant in error that the street-railway company is not responsible or liable even if insulting language were used, because the act of 1891 (Acts 1890-1, p. 157) makes the conductor an officer of the State by delegating to him police power. This brings us clearly up to the question as to whether the conductor, in obeying §§526 and 527, or ever in exercising police power, is an officer of the State in such sense as to give immunity to his employee, the common carrier, from liability for damage arising from the improper discharge of his duties. The exact question, so far as Penal Code, § 527, is concerned, has not been decided by the Supreme Court, for § 902 of the Penal Code, which was involved in the.decision in Seaboard Air-Line Ry. v. O’Quin, 124 Ga. 359, expressly provides that nothing therein contained shall affect the liability of 'the railroad company for the acts of its employees. We think that the omission of this provision from § 527, however, is immaterial. The reasonableness of the rule that agents, selected and discharged at the pleasure of the carrier, should not be the means of relieving it from proper liability, is apparent; and this court held in Georgia Ry. Co. v. Baker, 1 Ga. App. 833 (6) that “while a conductor of a common carrier is clothed with police power, that fact affords no immunity to the carrier for damages resulting from his wrongful and illegal discharge of his duties, •either as a servant of the company or under cover of police power •delegated to him by law/’ In no ease where a passenger is mistreated can the fact that the servant of the company was carrying put the provisions of Penal Code be -used as a defense,, unless it appears that such servant was acting outside the scope of his authority, The conductor acts at the peril of his employer. The police power, the duty of executing the law requiring the separating of the races, is not placed upon the conductor as an individual, but upon a particular agent of the company to enable the carrier to better perform its duty of protecting its passengers — of protecting them not only from assault and physical injuries, but also.from abuse and insult. The particular oífitíer of the company who shall discharge this duty is selected and named only because the artificial body has no hands save those of its servants. Nor does good faith affect the primal question of liability, though proof of good faith may reduce the finding to one for mere nominal damages. Good faith, unaccompanied by that degree of freedom from fault recognized by law as applicable between- servant and passenger, is no excuse for an insult offered by a servant of the carrier to a passenger who suffers injury.

We come then to the third question of the case. If the language used was such .as tended to cause pain and suffering by reason of humiliation and personal indignity offered by the company’s servant, it would be immaterial whether he was acting, as a police officer or not, and it would be immaterial whether the insult consisted of the commission of an overt act, wantonly and wilfully done, or such an act done as would naturally cause pain thereby, whether intended or not. Either would constitute an omission of the -duty to protect the passenger resting upon the carrier. We think the jury should have been allowed to pass upon the circumstances under which the language was used and the manner of its use, and to say how much the plaintiff was damaged, if he was injured. The question has never heretofore been directly raised in this State as to whether it is an insult to seriously call a white man a negro, or to intimate that a person apparently white is of African descent. We have no hesitation, however, after the most mature consideration of every phase of the question, in declaring'our deliberate judgment to 'be that the wilful assertion or intimation embodied in the declaration now before us constitutes an' actionable wrong. We can not shut our eyes to the facts of which courts are bound to take judicial notice. Certainly every court is presumed to know the habits of the people among which it is held, and their characteristics, as well as to know leading historical events and the law of the land. To recognize inequálity as to the civil or political rights belonging to any citizen or class ■of citizens, or to attempt to fix the social status of any citizen, ■either by legislation or by judicial decisions, is repugnant to every principle underlying our republican form of government. Nothing is further from our purpose. Under our benign institution, ^every man is the architect of his own fortune;” every citizen, white and black, may gain, in every field of endeavor, the recognition his associates may award. That is his right and his own concern. But the courts can take notice of the architecture without intermeddling with the building of the structure. It is a matter of common knowledge, that, viewed from a social standpoint, the negro race is in mind and morals inferior to the Caucasian. The record of each from the dawn of historic time denies equality. This fact was Recognized by two of the leaders on opposite sides of the question of slavery, Abraham Lincoln and Alexander H. Stephens. The former on numerous occasions declared that it was mo part of the proposition even of the abolitionists to attempt to establish a condition of social equality between an inferior and superior race. And Alexander H. Stephens declared that the Southern Confederacy was based upon the acknowledged superiority of the Caucasian race over the Negro. The distinction and inequalitjr are recognized in Holy Writ.

We are not compelled to plant our decision on the ground of in equality or inferiority. We take judicial notice of an intrinsic difference between the two races. Certainly if a court can take judicial notice of near a thousand things, some even of slight Importance, which have been judicially recognized without proof, this court may be presumed to observe that there is a marked difference between a Caucasian and an African. Notice of this difference does not imply legal discrimination against either, and for that reason can not in any sense impugn or oppose the 14th and 15th amendments to the constitution of the United States or the constitution of our own State. Our constitution, article 1, section 1, paragraph 18, declares that the social status of the citizen shall never be the subject-matter of legislation. It has been said that this language was used for the express purpose of leaving the social status open to judicial determination. We, however, shall not take any such fanciful position; for it can not properly be said that that which can not be the subject-matter of legislation can be judicially administered. This, however, does not affect the subject of judicial notice of matters of history, common knowledge, etc. The sounder view is, that neither legislatures nor courts shall grade the citizen according to his social status, and yet that the courts can and must know and notice the meaning of words of opprobrium as well as the connection in. which these words are used. For instance, shortly after the Revolution no greater term of opprobrium could be applied to an American citizen than that of a Hessian or a tory, while of course it would have been no insult to apply the term Hessian to a native of the duchy of Hesse, and the word “tory” was deemed in old. England a synonym of loyalty and patriotism. We might greatly lengthen the list by adding various terms, such as “carpet-bagger,” “scalawag,” etc., where words ordinarily innocent may be insulting dependent upon the circumstances, of their use. An insult or a slander may consist in the imputing of crime. But an. insult does not necessarily consist in the use of language imputing a crime. It more generally consists in the use of language affecting the social status and personal feelings or business relations of the person insulted. Courts and juries are bound to notice the intrinsic difference between whites and blacks and the mixture of whites and blacks in this country. As said by Chief Justice Lumpkin, in Bryan v. Walton, 14 Ga. 200, “the effect of manumission . . would have great influence in the determination of a similar question here, were it not for the difference in color, . . a difference deep and ineradicable.” The difference: in races to which we have adverted is recognized in this State by the laws against intermarriage, by the laws for the separation of passengers by common carriers, separate schools, etc.. It is admitted by the Supreme Court of the "United States in Plessy v. Ferguson, 163 U. S. 544, where the constitutionality of a similar statute separating the races was upheld. On page 551, supra, the court says: “Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both, races be equal, one can not be inferior to the other, civilly or politically. If one race be inferior to the other socially, the constitution of the United States can not put them upon the same plane.” The same recognition of the great fact of distinction and difference between races is also accorded by the Supreme Court of Pennsylvania in the very forceful opinion in the case of West Chester & Philadelphia R. Co. v. Miles, 55 Pa. St. 209, 93 Am, Dec. 744. See also State v. Gibson, 36 Ind. 389.

Taking into consideration, then, the difference in color, if nothing else, and bearing in mind that a little more than forty years ago the black race were slaves without civil standing or social or political rights, and keeping in view the further fact that a pure black man can not be mistaken for a white man, and the fact that intermarriage between the races has been continuously forbidden in this State, to charge a white man, even though of dark skin, with being a colored man, or a colored' man, even though of fair skin, with being a white man, is to impute the odium of illegitimacy. Under the decisions of this State it can not be questioned that to make such a charge (either directly, or by intimation easily understood by the bystanders) would be an aggravated insult; and if a servant, charged with the duty\of separating the passengers, heedlessty, even though unintentionally, without the exercise of the proper degree of diligence, made a mistake, the company would be liable for his omission of that proper care for the protection of the passenger for which the carrier is bound. Furthermore, the Penal Code, §528, makes any passenger remaining in any car or compartment or seat other than that to which he may have been assigned guilty of á misdemeanor; and where the assignment and seats are well known, to falsely charge a passenger with occupjdng a seat not assigned to his race is to charge him either with attempting to commit a misdemeanor or of being actually guilty thereof. In any view this would be actionable. If the difference in race, referred to by Chief Justice Brown in Scott v. State, 39 Ga. 323, exists, as it undeniably does, then to wrongfully, though unintentionally, accuse a white man of being of negro descent and of trying tq put himself in that portion of the car where by law he is forbidden, thus illegally causing mortification and pain, creates an injury for which the law allows reparation. The good faith of the conductor, his lack of intention to wound, may lessen and greatly mitigate the amount of the damages, but it can not altogether defeat a recovery; and for this reason we think the court erred in sustaining the general ■demurrer and dismissing the case. In the case above cited, Chief Justice'Brown, delivering the opinion of the court, says: “The Code of Georgia, as adopted by the new constitution, . . forever prohibits the marriage relation between the two races, and declares all such marriages mill and Void. With the policy of.this law we have nothing to do. It is our duty to declare what the law is, not to make the law. For myself, however, I do not hesitate to say'that it was dictated by wise statesmanship, and has a broad and solid foundation in enlightened policy, sustained by sound reason and common sense. The amalgamation of the races is not only unnatural, but is also productive of deplorable results. Cur daily observation shows us that the offspring of these unnatural connections are generally sickly and effeminate, and that they are inferior in physical development and strength to the full-blood •of either race. It is sometimes urged that such marriages should be encouraged, for the purpose of elevating the inferior race . . to the position of the superior; but they bring down the superior to that of the inferior. They are productive of evil, and evil only, without any corresponding good. . . But government has no power to regulate social status. Before the laws, the Code of Georgia makes all citizens equal without regard to race or color. But it does not create, nor does any law of any State attempt to enforce, moral or social equality between different races or citizens ■of the State. Such equality does not in fact exist, and never •can. The God of nature made it otherwise, and no human law •can produce it and no tribunal can enforce it. . . While the .great mass of the conquering people of the States which adhered to the Union during the' late civil strife have claimed the right to dictate the terms of settlement, and have maintained1 in power those who demand that the people of the States lately in rebellion ■shall accord to the colored race equality of civil rights, . . they liave neither required of us the practice of miscegenation, nor Bave they claimed for the colored race social equality with the "white race. The fortunes of war have compelled us to yield to the freedmen the legal rights above mentioned, but we have never .authorized or legalized the marriage relation between the races, nor have we enacted laws '. . regulating the social status, so. .as to compel our people to meet the colored race on terms of social equality. Such a state of things could never be desired by the thoughtful and reflecting portion of either race. It could never promote peace, quiet, or social order in any State or community. No such laws are of force in any of the Northern States, so far as I know; an^L it is supposed no considerable part of the people of any State desire to see them enacted.”

We can not shut our eyes to the fact that there is a universally recognized distinction between the races. The situation which confronts us in the present case is the relation occupied by three classes of people in this State: whites, blacks, and a mixed breed resulting from unlawful relations between the two. The charge made by the conduct of the street-car conductor can not be construed as being that plaintiff was a full-blooded negro, but that he had enough negro blood to be classified with that race, or else that he was a white man degraded (as the conductor himself assumed) by having associated with negroes, or that, having negro blood in his veins, he was attempting to violate ,the law by putting himself in that portion of the car assigned to whites. In Bryan v. Walton, supra, Chief Justice Lumpkin says, on page 202: “Our ancestors settled this State when a province, as a community of white men . . possessing an equality of rights and privileges. The blacks were introduced into it, as a race of Pagan slaves. The prejudice, if it can be called so, of caste is unconquerable. It was so at the beginning. It has come down to our day. The suspicion of taint, even, sinks the subject of it below the common level.” And on page 205 he says, “In no part of this country, whether North or South, East or West, does the free negro stand erect and on a platform of equality with the white man.” In Flood v. News & Courier Co., 50 S. E. 637, the Supreme Court of South Carolina held that to publish in a newspaper of a white man that he is colored is libelous per se, and cited numerous authorities to sustain its position. To the same effect was the decision of the Supreme Court of Louisiana, in Upton v. Times Democrat Pub. Co., 28 So. 970; and in Southern Ry. Co. v. Thurman, 90 S. W. 240, the Court of Appeals of Kentucky held that a cause of action was set out. If, as we hold, to call a white man a negro or to intimate that he is of African descent may be an insult (and we think that, under the circumstances detailed in plaintiff’s petition, the jury might consider it insulting for any of three intimations which might arise), then the demurrer should have been 'overruled. This ease is practically identical in principle with those of Davis v. Tocoma Ry. Co., 35 Wash. 203, and Gillespie v. Brooklyn Heights Co., 178 N. Y. 347. In the latter case Judge Martin, delivering the opinion of the -court, says, “The relation between the carrier and its passenger is more than a mere contract relation, as it may exist in the absence of any contract whatever. Any person rightfully on the cars of a railroad company is entitled to protection by the carrier, and any breach of its duty in that respect is in the nature of a tort, and recovery may be had in an action of tort as well as for the breach of the contract. • And quoting from Booth on Street Railways, § 372, the court proceeds, ‘no matter what the motive is which incites the servant to commit an improper act towards the passenger during the existence of the relation, the master is liable for the .act and its natural and legitimate consequences.’ Hence, it is responsible for the insulting conduct of its servants which stops short of actual violence.” In the Gillespie case are very numerous citations, exhaustively treating the subject and establishing beyond any controversy that a common carrier is liable for any injury resulting from the use of language insulting, abusive, or defamatory by one of its servants towards a passenger while in the exercise of his duty., . Judgment reversed.

Hill, C. J., and Powell. J.,

concurring. As stated in the third headnote, we think (while Judge Russell does not) that if the conductor, in the exercise of his duties in the dual capacity of police officer and agent of the company in attempting to enforce §527 of the Penal Code, uses extraordinary diligence, that is to say, extreme care and caution, to prevent mistaking a white man for a negro or vice versa, and such a mistake nevertheless results, the carrier would not be liable. We concede that in. taking this position we are somewhat at variance with whát was said by the Supreme Court in the second division of the opinion in the case of Seaboard Air-Line Railway v. O’Quin, 124 Ga. 359, where a charge substantially embodying this proposition in a case standing upon a somewhat similar basis was disapproved. Still it will be seen that so much of the decision as asserts that this charge was error was obiter, since the court held that such a charge was more favorable to the complaining party than otherwise, and that the exception therefore could not be considered. Our idea of the matter is this: The carrier is charged by the statute with the absolute duty of separating the races, and is likewise charged with the duty to use extreme care and caution to'protect its passengers from insult. In performing the first duty, he must necessarily use his judgment to determine whether the passenger is a white man or a negro; and to the end that no mistake shall be made to the insult of the passenger, he must perform this duty with extreme care and caution; and if still, after all, a mistake is made and a passenger is insulted and consequently injured, the injury is damnum absque injuria.


source: Caselaw Access Project

author: Russell, J.

license: Public Domain

text:
    58.
    CENTRAL OF GEORGIA RAILWAY COMPANY v. AUGUSTA BROKERAGE COMPANY.
    1. A verdict will not be set aside for an error in the admission of evidence, when the same result should have been reached had such evidence been repelled.
    '2. An intimation of opinion by a trial judge, that an issuable fact has been proved, requires the grant of a new trial.
    3. The decision of the Supreme Court in Central Ry. Co. v. JLtigusta Brokerage Co., 122 Ca. 646, is controlling as to the principles therein announced, and is the final law of this case. The charge of the trial judge, in several portions, being in conflict therewith, a new trial necessarily results.
    Action for damages, from city court of Kichmond county' — ■ Judge Eve. July IT, 1906.
    Argued February 4,
    Decided October 3, 1907.

      Lawton & Cunningham, J. C. C. Black, for plaintiff in error.

      William H. Fleming, contra.
   Russell, J.

After a very painstaking consideration of the record and of the very exhaustive briefs of the counsel in this case, we feel obliged to reverse the judgment of the lower court refusing a new trial Viewing the countenance of the case as delineated by the evidence, we were inclined to the opinion that the plaintiff was entitled to the recovery awarded by the jury; for the record presented such an instance of discriminatory partiality on the part of the Central of Georgia Eailway Company as, in our individual opinion, calls justly for the application o£ punitivo and exemplary damages; but the controlling questions of' law have already been decided adversely to the contentions of the defendant-'in error, and that decision is the law of the case. Central Ry. Co. v. Augusta Brokerage Company, 122 Ga. 646. The decision in that case relieves us of great responsibility, and leases but little for our decision. The errors complained of in the numerous grounds in the motion for new trial may be divided into three classes: (1) Exceptions taken to certain portions of the charge* and refusals to charge. (2) Complaints of violation of section 4334 of the Civil Code. (3) Error in the admission of certain evidence. We shall consider those in reverse order.

In the light of the evidence adduced, were the complaint as to-the admission of Mr. Daniel’s evidence the only error, we would have no hesitation in ruling that the verdict of the jury was right,, and that the error in the admission of testimony was immaterial-

Though the grant of a new trial because of the expression of an opinion on the part of a judge is mandatory, the exception^ taken, to the charge upon this ground, with one exception, are eliminated when the charge is considered as a whole. As well argued by counsel' for defendant in error, the evil to be avoided was the danger of the judge influencing the jury; and while in some portions of the charge it may at first sight appear that the judge intimated an opinion, a second reading dispels the impression, by showing-that the opposite contention was immediately presented to the jury, and that they were told that they were the exclusive judges of the facts.

In the eighth ground of the motion for new trial it is insisted that the court erred in charging the jury as follows: "If you find it was wilful, they would be entitled to exemplary damages; and'in considering that, you consider all the aggravating circumstances surrounding the violation of the rule and connected with and incident to it, and the intent and purpose of the parties in violating the rule, as shown by the evidence.” This was error, because it assumed that the rule had been violated and that aggravating circumstances liad been shown. The very able counsel for defendant in error insists that the complaint of error is not well founded, because the language used by the judge was no inva-' sion of the province of the jury, and also because other portions of the charge clearly and distinctly left it for the jury to decide: whether there were aggravating circumstances or not. We have such high regard for the legal ability of our brother, and he has pressed the point with such earnestness, that we have only reached a decision after full investigation and mature deliberation. Under the provisions of the Civil Code, embodied in §4334, as construed by our Supreme Court, the error arising from the expression of opinion as to the evidence on the part of the trial judge can hardly be cured by subsequent proper instructions upon the same subject; and it is doubtful if the injurious effect can be removed even by explicit reference to the intimation or expression of opinion, and unequivocal and public withdrawal thereof. In Robinson v. Schly, 6 Ga. 525, it was said that “the books abound with authority to show, that if the instructions of the court assume or presuppose a fact proper for the decision of the jury, it is error, and a new trial will therefore be granted.” And in Headman v. Rose, 63 Ga. 459, 466, it was held that this court has no discretion, but is bound to reverse the judgment, in case of such error. It has been held that whether the expression or intimation of an opinion was supported by the evidence or not, and whether in fact it was injurious to the party or not; and even though it was wholly unintended, and though the verdict be what it ought to be, the result is the same. Phillips v. Williams, 39 Ga. 603; Bohler v. Owens, 60 Ga. 186; Sanders v. Nicolson, 101 Ga. 739. In our opinion the language excepted to in the eighth ground of the motion conveys an intimation that there had been both a violation of the rule and that it was attended with circumstances of aggravation. So that, whatever may have been the charge of the court thereafter, and even though the jury may have been correctly instructed, the effect was to confuse the jury. Under such conditions it would be impossible for them to regard the instructions of the court and at the same time render an intelligent verdict. Ga. R. Co. v. Hicks, 95 Ga. 305. See also Whitley v. State, 38 Ga. 50-73; Savannah Ry. Co. v. Hatcher, 118 Ga. 273; Morrison v. Dickey 119 Ga. 698 (2), 701; Jenkins v. State, 123 Ga. 530, etc. We might personally agree with the reasoning of the court in Davis v. State, 51 Neb. 301, cited by counsel for defendant in error, or concur in counsel’s argument as to a proper construction of §4334, but we are bound by the prior adjudications in this State.

As to the errors assigned as to the charge, regardless of our personal view, we are permitted to hold but one opinion. The constitutional amendment creating this court bound us by the decisions of the Supreme.Court. This case has twice appeared in that tribunal, and the law of the case has been fully expounded by what is to us binding authority. In 122 Ga. 646, the essential principles which control the legal aspect of the case are decided]

The charge of the learned trial judge, in several of. the, extracts to which exception is taken, is.diametrically opposed to the adjudication of the Supreme Court. The theory of the charge, and of the decision of the Supreme Court are wholly in conflict. In the case of Central Ry. Co. v. Augusta Brokerage Co., supra, the Supreme Court held, that, “As to issuing through bills of lading or furnishing its cars to connecting carriers, in order that shipments may be carried to ultimate destination without reloading ,<at terminal points, a carrier may discriminate against cottonseed, provided all shippers of that commodity are treated alike.” That such discrimination is dictated by the business interests oí the carrier and really affects but a single shipper, because he -is the only person at a terminal point who is engaged in shipping cottonseed out of the State, can not alter the matter.” The plaintiff proved the discrimination, but did not prove that any commodity was discriminated against except cottonseed. It proved that the discrimination was dictated alone by the selfish interest of the carrier; but as the evidence shows no one else who was affected save itself, the discrimination, no matter how injurious to the plaintiff, in the language of the Supreme Court, “can not alter the matter.” To quote from the decision of the Supreme Court (for the evidence, on both trials appears to have been practically the same), “th.e situation may thus be summarized: the oil-mills-at Augusta depended largely, for a supply of cottonseed, upon the territory through which ran the defendant railway company’s line; they delivered to it their manufactured products for shipment; so the railway company got a short haul on the raw cottonseed, and also a long haul on the reshipments made over its line of the manufactured products. It was not to the business interests of the railroad company that cottonseed grown at local stations on its Augusta and Savannah branch should bo shipped to oil-mills located in South Carolina; for none of the manufactured products could then be secured for reshipment, at a high rate, over its road; its interest dictated that the cottonseed should stop at Augusta and be manufactured into oil and by-products by the mills located at that point. The railway company therefore determined that it would not, by voluntarily granting facilities to shippers which it was under no legal duty to afford, supply the means of diverting from its road profitable shipments which it otherwise would receive. On the other hand, the material business interests of the brokerage company demanded that it should be granted such facilities. It was a free lance, in open competition with the oil-mills of Augusta, in the buying of cottonseed at the lowest price possible, and all the seed purchased by it were shipped from Augusta over the Southern Railway to South Carolina mills.. To reload shipments at Augusta for the South Carolina trip was expensive; to get through bills of lading, or to secure the consent of the defendant company that its loaded cars be delivered to the Southern Kailway at Augusta so that the seed might be carried to its ultimate destination without reloading, would render the business of the. brokerage .company profitable, the business of the Augusta oil-mills less remunerative. Their interests and those of the defendant railroad company were coincident; its interests and those of the brokerage company conflicted. The railway company acted as the average business man would have done; that is all. In declining to grant the privileges which the brokerage company wished ro enjoy, the railway company merely adopted a policy which was within its legal rights as a carrier. State v. Railroad Co., 104 Ga. 437. That the brokerage company may have been the only broker in Augusta or elsewhere affected by this policy can not alter the case. As a shipper, it was not discriminated .against, though one of the commodities it handled was, incidentally.” It appears to us that the only effective way to discriminate agránst a shipper is to discriminate against the things he ships; hut we are nevertheless bound by the decision of the Supreme Court on the subject.

The request to charge set forth in the ninth ground of the motion should have been granted. The railroad company denied that there was discrimination against the plaintiff by withholding from it privileges accorded to other patrons. It was, therefore, proper for the court to have instructed the jury that" the plaintiff could not recover damages upon the ground of discrimination because of the refusal of certain privileges, .unless it appeared that such privileges were granted to other patrons. The instruction complained of in the second ground of the motion for new trial is in the identical language held to be error when delivered on the former trial of this case. The remaining exceptions are fully treated in the former decision in this case (122 Ga. 646), and any further discussion of the principles involved would be profitless.

Judgment reversed.

Powell, J., disqualified.


author: Hill, C. J.

text:
    349.
    GEORGIA SOUTHERN & FLORIDA RY. CO. v. GREER.
    1. Where a shipper signs a contract limiting the liability of the common carrier and reciting that it is made in consideration of a reduced rate of freight, such recital is prima facie true, and the burden is upon the shipper to prove the contrary. The burden was not successfully carried in this ease.
    .2. A carrier of live stock can, by special contract, be released from liability for injuries to such stock arising from named causes, and can as to these and all other incidents of transportation, by such contract, stipulate for liability only in the event of damage and loss by the gross, negligence of its servants.
    3. Even where there was a special contract shown, limiting the liability ox the carrier of live stock, where the plaintiff proved' that the stock was lost or injured while in the possession of the carrier, the law would raise a presumption of negligence against the carrier, which must be rebutted by proof showing the exercise of that degree of diligence required by the contract.
    4. Where it appears that the cars in which the stock was carried were suitable; that the track was in good condition; that the equipments; and appliances of the train were adequate, and that there was no fault 'or negligence in any respect on the part of the carrier in handling the stock, or in the running and management of the train, or in the exercise by the servants of the carrier of that degree of care demanded by the terms of its contract and required by the nature of the stock, any presumption of negligence would be fully rebutted, and the carrier would not be liable for loss or damage to the stock while in transportation.
    5. The evidence in this case clearly showed that the death of the stock was due to the negligent manner in which it was loaded by the shipper. The verdict against the carrier must be set aside as without evidence to support it.
    Action for damages, from Turner superior court — Judge Spence. October 22, 1906.
    Argued May 14,
    Decided October 3, 1907.

      John I. Hall, J. E. Hall, R. C. Jordan, for plaintiff in error.

      H. C. McKenzie, T. R. Perry, J. H. Tipton, contra.
   Hill, C. J.

This was a suit for ninety dollars, the alleged, value of nine head of cattle which the defendant undertook to "transport for the plaintiff from Dakota, Ga., to Cleveland, Fla. 'The specific allegations were, that the plaintiff delivered to the •defendant, a common carrier, at Dakota, Ga., two hundred head of cattle in good order, to be transported to Cleveland, Fla.; that when the cattle arrived at the point of destination, there were only one hundred and ninety-one, and that nine had been lost or destroyed while in the possession of the defendant, and they were worth, at the point of destination in the market, ten dollars •a head. There is no allegation of any specific negligence by the •carrier, but only the general allegation of negligence. The defendant answered, denying all the material allegations of the ■petition. The jury found a verdict in favor of the plaintiff for the full amount, and defendant’s motion for a new trial was overruled. The evidence for the plaintiff, briefly stated, made the following ease: The two hundred head of cattle were delivered to the defendant by the plaintiff at Dakota, under a through bill •of lading issued by the defendant, covering the shipment of said cattle from said point of delivery to Cleveland, Fla.; and when the cattle arrived at Cleveland, Fla., there were one hundred and ninety-one delivered to the consignee. The plaintiff relied for a ■recovery upon the presumption of liability which arises against the carrier under the statute of this State. Civil Code, §2264. In cases of loss, the presumption of law is against the common carrier, and no excuse avails him unless such loss was occasioned by the act of God, or the public enemies of the State.

The defendant introduced in evidence a live-stock contract of shipment, entered into between it and the plaintiff, whereby the plaintiff agreed to release the defendant from liability in case of loss or injury to the stock by reason of a number of named causes, to wit: “In consequence of overloading, heat, suffocation, fright, viciousness, . . and from all other damages incidental to railroad transportation which shall not be established to have been caused by the gross negligence or delinquency of any of the officers •or agents of the said railway, having the stock in charge; and the owner or shipper is to look to the company on whose line damage occurred for compensation for such damage.” It was recited in this contract that the consideration therefor to the plaintiff was a reduced rate of freight. The plaintiff admitted the execution of this contract by him, but stated that he had not asked for a reduced rate and had received none. Besides the explicit-recital in the contract signed by the plaintiff that the rate of freight was a reduced rate, there was written in said contract the letters “Bel.,” which meant that the contract was a release shipment. These letters were also written across the bill of lading issued to the plaintiff by the defendant, which indicated that it was a release bill of lading; and in all such contracts, according to the evidence, there is a material difference in the rate charged, being less than when the shipment is made at the carrier’s risk. The plaintiff further testified that he had been shipping cattle for ten or twelve years, and always under the release contract similar to the one he signed in the present case.

'When a shipper signs a contract containing stipulations limiting the liability of the carrier, and reciting that such limitation was made because of a reduced rate of freight, the burden is upon him to show that the consideration therefor and therein recited was not true, and'that as matter of fact he had received no consideration for such contract. This burden was not successfully carried by the plaintiff in this case, but the evidence clearly established the making by him of this special contract in question, and the giving of a reduced rate of freight as the consideration for the contract

The special contract was therefore valid under the laws of this State, and the plaintiff was bound by its terms. Civil Code, § 2276; Cooper v. R. & G. R. Co., 110 Ga. 662; Georgia R. v. Spears, 66 Ga. 485.

But the rule of presumption against the carrier, notwithstand-. ing said special contract, still arose, and the burden was upon the company to rebut this presumption; but the contract diminished the onerous character of this burden, for under its terms the carrier was required to exercise only slight diligence, and was only liable for gross negligence. Columbus R. Co. v. Kennedy, 78 Ga. 653; Cooper v. R. & G. R. Co., 110 Ga. 663.

As before stated, the plaintiff did not show by his evidence any specific negligence against the defendant, bitt only relied upon the presumption against the carrier! Did the defendant, under the evidence in this case, meet and overcome this presumption' up to the degree of diligence required of it under the terms of the special contract? Under the special contract, the railroad company was only‘liable for the gross negligence of its servants in connection with said shipment. The evidence introduced by the defendant was, in our opinion, entirely sufficient to rebut the presumption of negligence. It appeared from this evidence, that the cars in which the stock were transported were suitable for the purpose; that the track was in good condition; that the equipment and appliances of the train were adequate; that there was no collision, no sudden jerking of the cars, no delay in transportation; and that the agents of the carrier exercised all proper care in handling the stock. In addition to this evidence which certainly largely tended to relieve the carrier of the presumption of negligence, the facts further presented by a very large preponderance of the testimony at least show a cause for the loss of the cattle in the carelessness of the plaintiff himself. The cattle at the point of shipment were loaded on the cars by the shipper; he being responsible for the manner in which the loading was done. The cars into which the cattle were loaded were forty-two feet long.. In one car were crowded fifty-six head, and in another fifty-seven head, and in the third eighty-seven head of cattle. The shipper said that this was, considering the size and condition of the cattle, not overcrowded. The testimony of his witnesses did not fully support this statement; and the overwhelming testimony of the defendant’s witnesses was that the cattle were greatly overcrowded on these three cars. Besides this evidence, the physical condition of the cattle when the train reached Yaldosta, Ga., showed much suffering, apparently from suffocation, due to the crowded condition of the-cars; and when the train reached Jasper, Fla., this physical condition induced the agents of the company, in order to relieve the cattle, to unload two of the cars and reload the cattle into three cars.

We think that the conclusion is irresistible, from all the evidence in this case, that the death of the cattle for which suit was brought could only have been reasonably attributed to the manner in which they were loaded, and that the defendant fully exorcised, in connection with the transportation of the cattle, that degree of care which the terms of its contract with the plaintiff required. The learned judge of the trial court submitted the issues made by the pleadings and evidence, fairly, fully, and aptly to the jury. We are constrained to believe that the verdict was based upon the idea that the defendant had not rebutted the presumption of liability against it under the general law, and that the special contract, limiting such liability and which was clearly proved, was not considered' by them. Even under the general law, certain exceptions have grown up in favor of common carriers in the case of live-stock carriage, arising from the nature of the property transported. Cooper v. R. Co., supra; 5 Am. & Eng. Enc. L. (2d ed.) 443. The cattle that died in this case while in transportation had no physical marks indicating injuries resulting from any violence. The evidence showed that the servants of the carrier exercised that degree of care which the nature of the property required; and if the facts did not, in our opinion, point out as the cause of the death physical injury due to overcrowding by the shipper, the only rational theory under the evidence would be that they died from some natural disease superinduced and aggravated by the crowded condition, and not from any want of vigilance and care by the servants of the defendant.

We think the verdict should be set aside because without any evidence to support it. Judgment reversed.


text:
    372.
    Hirsch & Company v. Dozier Lumber Company.
   Hill, C. J.

1. The brief of the evidence in this ease is not a compliance with the mandatory requirements of the Civil Code, §§ 5484, 5488. There is apparently an attempt to abbreviate the oral testimony from the stenographic report, but many “immaterial questions and answers and parts thereof” are not stricken. The documentary testimony consisting of statements of accounts and numerous letters between the parties is given in full, with no attempt to brief the same. Hathcock v. McGouirk, 119 Ga. 973; Wall v. Mercer, Id. 346; George v. State, 123 Ga. 504; Smith v. State, 118 Ga. 83, and numerous decisions by the Supreme Court.

2. The trend of legislation in this State is to insure the hearing of cases by reviewing courts on the merits; but the statutory requirements that in' motions for new trial there “shall be a condensed and succinct brief of the material portions of the oral testimony,” and “the substance of all material portions of documentary evidence,” have never been modified.

Attachment, from city court of Savannah — ’Judge Norwood. January 25, 1907.

Argued June 19,

Decided October 3, 1907.

Osborne & Lawrence, for plaintiffs in error.

George W. Owens, contra.

3. A compliance with the statute as to a brief of the evidence is an essential condition precedent to the 'determination of any assignment of error depending on a consideration of the evidence. Bowe v. Gress Lumber Co., 86 Ga., 18; Jones v. State, 125 Ga. 49; 13 Michie’s Enc. Dig. Ga. R. 240.

4. Proper briefs of evidence restricted to an elucidation of the issues involved and pertinent to the errors assigned are of incalculable benefit in securing correct decisions, and in affording relief to overworked courts. This much the statute demands, and the courts have the right to require of counsel.

5. No question being presented for decision which can be determined without reference to the evidence, the judgment of the court refusing a new trial must be affirmed. Judgment affirmed.


text:
    393.
    Moseley v. Dinkins.
    Action for breach of contract, from city court of Swainsboro— Judge Mitchell. February 11, 1907.
    Argued June 20,
    Decided October 3, 1907.

      Saffold & Larsen, for plaintiff in error.

      Henry R. Daniel, contra.
   Hill, C. J.

The errors of law complained of being wholly immaterial as affecting the merits of the case, and the verdict being amply supported by the facts and approved by the trial judge, this court will not interfere. Judgment affirmed.


text:
    404.
    BOWEN v. WAXELBAUM & BROTHER.
    1. Fraud in the promisor, without injury to the promisee, is not sufficient to invalidate a contract, and constitutes no defense.
    2. A debtor who gives his note to a creditor for a valid subsisting debt, induced to do so by certain statements of the creditor, can not set up, as a defense to said note, that such statements were false and fraudulent, without also alleging and proving injury and damage.

      3. “An agreement by a creditor to receive less than the amount of his debt can not be pleaded as an accord and satisfaction, unless it be-actually executed by the payment of the money, or the giving of additional security, or the substitution of another debtor, or some other new consideration.”
    4. Parol evidence being inadmissible to'add to, take from, or vary a written, contract,' an answer to a suit on a promissory note, that the payee at the time the note was executed verbally promised to take less than the face of the note in payment thereof, constituted no defense.
    5. The pleas having been properly stricken, except as to attorney’s fees, there was no error in directing a verdict for the plaintiffs for principal and interest of the note, and submitting the issue relating to attorney’s, fees to the jury. The verdict on this issue was fully supported by the-evidence.
    Complaint, from city court of Statesboro — Judge Brannen. February 12, 1907.
    Argued June 21,
    Decided October 3, 1907.

      A. M. Deal, Fred T. Lanier, for plaintiff in error.

      Johnston & Cone, Hardeman & Jones, contra.
   Hill, C. J.

This was a suit on a promissory note made by the defendant under seal, and payable to the order of the plaintiffs. The defendant filed the following answer:

"1. Defendant admits the execution of the note sued on, and that plaintiff is the legal owner and holder of the same.
“2. Defendant alleges that on June 19th, 1905, there was held at Savannah, Georgia, a meeting of defendant’s creditors. That plaintiff was present at said meeting, and at that time defendant owed plaintiff $202.00 on an open account. Defendant shows that at the date of said meeting he was insolvent; that at said meeting he made his creditors a proposition to pay fifty cents on the dollar, in full settlement of what he owed them, and advised said creditors that unless some compromise as that was. made, that he, defendant, would be forced into a court of bankruptcy.
“3. Defendant showed that in consideration of his not going into bankruptcy, and the further consideration of his insolvency, that plaintiff agreed to accept $101.00 in settlement of the $202.00 which defendant then owed plaintiff.
“4. Defendant shows * that after the above terms had been agreed upon between him and plaintiff, that plaintiff told defendant that he would fill out a note for $202.00, and desired defendant to sign said note, but that immediately upon his signing the same, that he, plaintiff, would turn over said note to J. W. Olliff for defendant. Plaintiff claimed that he would abide by his former • agreement to take $101.00 in settlement of his former claim, but said that he only wanted the note to show what amount had been compromised, and that he would then and there deliver said note to the defendant or to J. W. Olliff for defendant.
“5. Defendant, relying on the statement of the plaintiff that he would turn said note over to J. W. Olliff, signed said note.
“'’6. Defendant shows that after he signed the note sued on, that plaintiff, in violation of his' contract, refused to deliver to defendant or to J. W. Olliff said note, or to accept $101.00 in settlement of his claim, as he agreed to do before and at the time of signing the same.
“7. Defendant alleges that said note was procured by fraud; that the deception used and the misrepresentations made were used and made for the purpose of cheating defendant, and1 that the same deceived, misled, and actually defrauded defendant. That he would not have signed said note except upon the agreement of plaintiff to accept the $101.00 in settlement of what defendant owed plaintiff, and his agreement to deliver said note to defendant then and there.
“8. Defendant shows that at the time said note was signed he was ready to perform his part of the contract with plaintiff; that he was ready then to pay plaintiff the $101.00 in settlement of plaintiff’s claim against defendant; that he offered to pay plaintiff said $101.00 before'the filing of this suit, and that he now tenders the $101.00 into court.”

This plea was amended by adding the following:

“Defendant shows that the note sued on was gotten possession of by the plaintiff through fraud, and the signing of the note was induced by the fraud of the plaintiffs. Said fraud consisting as follows: The plaintiff told defendant to sign tihe note for the full amount of the account for $202.00, and that the plaintiffs would deliver the note for defendant to J. W. Olliff and accept fifty per cent, of the same in settlement of the note. Defendant shows that the omission to recite in the note the fact that it would be settled for fifty per cent..of its face value was due to the fraud of the plaintiffs as above set out. Defendant shows that at the time said note was executed he was only duo the plaintiffs $101.00, and would not have executed the note but for the fraud of the plaintiff as heretofore .set out, to wit, that he would turn the note over to J. W. Olliff for defendant, and accept $101.00 in settlement of same.”

Defendant also amended by denying the plaintiffs’ allegation relative to the claim of attorney’s fees, and alleged that the notice required by law. before suit for attorney’s fees, contracted to be paid in notes, was not given.

On the trial the plaintiffs demurred to the plea and answer, except as to paragraph 4, and as to the paragraph in reference to attorneys’ fees; the court sustained the demurrer, and error is assigned to this judgment. The court thereupon directed a verdict for the plaintiffs for the principal and interest sued for, and submitted to the jury the issue of fact made relating to attorney’s fees, which issue of fact the jury found in favor of the plaintiffs. The defendant also filed a motion for a new trial, alleging error in the judgment sustaining the demurrer to his answer and pleas, and in directing a verdict for the plaintiffs, and on the general grounds; which motion was overruled, and the defendant excepted.

The defendant’s plea is that the note is void, because fraudulently obtained; and it charges the fraud to consist in certain promises made by the plaintiffs to induce him to give the note. The plea admits that at tire time he gave the note he owed the plaintiffs on account the exact amount of the note, and the plea fails to show how the defendant was injured or damaged by his written promise to pay what he in fact owed. The defendant was under no duty to execute the note, but he was under a duty to pay the debt; and unless his written promise deprived him of some legal right, or in some way injured him, he has no right to complain. He does not allege how the giving of the note injured or damaged him. Admitting that the plaintiffs did make the promises set out in the plea, they constituted no fraud in any legal or equitable sense. A sufficient defense can not be predicated upon fraud, unless such fraud results in some injury. Both fraud and injury must exist, to invalidate a written contract. The principle •of damnum absque injuria applies. Austell v. Rice, 5 Ga. 472; Strickland v. Parlin & Orendorf Company, 118 Ga. 213 (4).

The facts alleged in the answer are not sufficient to show accord and satisfaction. Most favorably considered for the defendant, these facts simply show a promise or agreement by his creditor to accept an amount less than his debt. This agreement was not executed by the payment of the money, or the giving of additional security, or some other new consideration. Civil Code, §3735.

The answer was also in direct conflict with the elemental principle of law that the terms of a written contract can not be varied by a contemporaneous parol agreement. The note was for $202, and an alleged agreement with the plaintiffs .to accept less could not be shown. Civil Code, § 3675, par. 1; Patterson v. Ramspeck, 81 Ga. 808.

After the plea was stricken, the case was undefended except as to the issue relating to the attorney’s fees. The court thereupon properly directed a verdict in favor of the plaintiffs for the principal and interest of the note, and submitted to the jury the issue as to the attorney’s fees. The verdict in favor of the plaintiffs' on this issue is fully supported by the evidence.

Judgment affirmed.


text:
    418.
    UNITED STATES FIDELITY AND GUARANTY COMPANY v. DAVIS, ordinary, for use, etc.
    1. The return of a guai’dian, made under oath to the ordinary, charging himself with having received assets of the estate, is prima facie evidence both against him and his sureties; and unless met by proof of a legal disposition of the assets so admitted to have been received, it is sufficient to show a devastavit.
    2. A guardian’s bond containing the conditions that the “guardian shall well and, truly maintain, and clothe, and educate said orphans according to their circumstances, and shall take good and lawful care of their persons and property according to the laws of this State, and shall annually make a just and true return of all his actings and doings herein unto said ordinary, and pay over all assets that may remain in his hands when said guardianship shall legally terminate,” and payable to the “ordinary, his successors and assigns,” is a good statutory bond, and is in substantial compliance with the provisions of the Civil Code, § 2528. Under the conditions of this bond as controlled by the law of this State, the guardian was not authorized, without the approval of the ordinary, to apply the corpus of the estate to the maintenance and education of his wards.
    3. Where the guardian is dead and his estate unrepresented, suit may be instituted on his bond against the sureties alone, at the instance of his ward, or a new guardian, or any other person interested. In such case it is not necessary to make a demand on the surety before suit; for its liability is proved by the breach of the bond by its principal, the guardian, for whose legal discharge of duty it became surety.
    4. No material error of law was committed, and the evidence fully supports the verdict.
    Action on guardian’s bond, from city court of Floyd county— Judge Hamilton. February 20, 1907.
    Argued June 25,
    Decided October 3, 1907.

      Denny & Harris, R. T. Fouché, for plaintiff in error.

      F. W. Copeland, W. M. Henry, contra.
   Hill, C. J.

Davis as ordinary of Floyd county brought suit for the use of Treadaway, guardian of the three named minor children of one Mark Smith, against the United States Fidelity and Guaranty Company, security on the bond of J. A. Carroll, deceased, guardian of said minor children. The jury found a verdict for the plaintiff; and to the judgment of the court, denying its motion for a new trial, error is assigned by the defendant. The case made by the plaintiff, briefly stated, is as follows: The appointment and qualification of J. A. Carroll as guardian of said three minor .children, November 15, 1899. The execution of the bond sued on, with the defendant as the only security. Exemplification of returns made by Carroll as such guardian to the ordinary, duly sworn to, dated and filed November 11, 1902, showing in his hands as such guardian the sum of $328.97 in cash. The death of said Carroll, September 14-, 1903, in Floyd county, intestate, without assets and insolvent, leaving a widow and four minor children. The setting apart as a year’s support, to the widow and four minor children, all the property left by deceased, appraised at from $250 to $300. The estate of Carroll was without any representation. It was also shown that none of the minor children had receivéd any property from the guardian coming into his hands from the estate of their father. The defendant introduced no evidence, and practically admitted the case made by plaintiff, but denied his right to recover under the facts shown, and the law: (1) Because there was no evidence showing a'devastavit, the returns of the guardian made in November, 1902, being insufficient for that purpose, when he died in March, 1903; this return only showed a receipt by the guardian of the money sued for and in his possession November, 1902, but did not show the condition of his accounts as guardian .at the date of his death in March, 1903. (2) Because the instrument sued on was a voluntary and not a statutory bond, and could' not be sued on as a statutory bond. The bond was made payable-to Davis as ordinary, his successors and assigns, “and no negotiable •or assignable, instrument can be made a statutory obligation,” the statute requiring a guardian’s bond to be “payable to the ordinary and his successors in office.” The condition of a statutory guardian’s bond is “for the faithful discharge of his duty as guardian,” and the conditions of the bond sued on are, the “guardian shall well and truly maintain, and clothe, and educate said orphans ac-. cording to their circumstances, and shall take good and lawful care of their persons and property according to the laws of the'State, and shall annually make a just and true return of all his actings and doings herein unto said ordinary, and pay over all assets that may remain in his hands when said guardianship shall legally terminate.” (3) That, under the conditions of this bond, the guardian was authorized to apply the corpus to the maintenance of his wards; that a compliance with the special conditions stated in the bond would satisfy it; and the burden was- on the plaintiff to'show that such conditions had not been complied with, which had not been done, but on the contrary the evidence for the plaintiff ■showed that the wards had lived with and been maintained by the guardian. (4) That, under the facts of this case, a demand was ■a condition precedent to plaintiff’s right to recover; and as the guardian was dead, an administrator of his estate was necessary in order that such demand could have been made. These are the positions covered by the able counsel in his argument and brief.

The evidence clearly proved a devastavit by the guardian. His return as such guardian, filed November, 1902, was prima facie evidence against him and his surety as to the amount in his hands appearing therefrom. 2 Brandt on Suretyship (2d ed.), § 628; Dowling v. Feeley, 72 Ga. 558 (3); Bailey v. McAlpin, 122 Ga. 632 (15).

It is insisted that while the returns might show the condition of the guardian’s account at the date when made, to wit, November, 1902, this did not show its condition in 1903, the date of the guardian’s death. This proof was supplemented by the positive .and uncontroverted testimony that neither one of the wards had received any part of their funds which this guardian admitted he-had in his hands in November, 1902. When it is shown that the-guardian had at any time during the trust received assets belonging to his wards, the burden is upon him or his surety to show that a legal disposition of such assets had been made. Freeman v. Brewster, 93 Ga. 648 (3). If the guardian had made any legal disposition of the fund in his hands in November, 1902, prior to-his death in March, 1903, the fact was easily susceptible of proof. He could not have paid to the minors any part of it, or expended, any part of it in their maintenance, beyond the interest and income, without the approval of the ordinary. Civil Code, §§ 2541, 2542; Dowling v. Feeley, 72 Ga. 558 (2).

The bond in this case was a sufficient compliance with the-Civil Code, §2528. This section provides that a guardian shall “give bond with good and sufficient security, to be approved by the ordinary, in double the amount of the supposed value of the-property of the ward, for the faithful discharge of his duty as-guardian; such bond shall be payable to the ordinary and his successor. A substantial compliance as to all matters of form shall be sufficient.” The condition as stated in the statute is “for the-faithful discharge of his duty as guardian.” The condition in the bond sued on sets out with particularity the duties of the guardian as comprehensively included in the general phrase of the statute. In this bond, the obligations of the guardian are that he “shalL well and truly maintain, and clothe, and educate said orphans according to their circumstances, and shall take good and lawful care-of their persons and property according to the laws of the State,, and shall annually make a just and true return of all of his actings, and doings herein unto said ordinary, and pay over all assets that-may remain in his hands when said guardianship shall legally terminate.” Surely all these things are embraced in the general condition, “faithful discharge of his duty as guardian.” The language of this bond, while somewhat fuller than the language of the-statute, means no more and no less. We are not impressed with the argument that the condition of this bond permitted the guardian, to expend the corpus in the maintenance of his wards. This clause must be construed as qualified by the right of the guardian, under the law, to use only the interest or income for that purpose, without the approval of the ordinary. In this case, it is also immaterial that the bond is payable to the ordinary, his successors and assigns. The suit is by the ordinary, the original obligee in the bond. The policy of the law as to all bonds required by statute, and especially as to bonds of guardians, administrators, and like trustees, is to disregard mere formalities, and to require only substantial compliance to secure all statutory remedies to persons injured by their breach. Civil Code, § 2535; Political Code, § 263.

Under the law as it now stands in this State, when “the guardian is dead and his estate unrepresented,” suit may be brought on the guardian’s bond against his sureties-alone. Civil Code, § 2535. Prior to the act of 1820, suit could not be brought against the surety on the bond until a judgment had been obtained against the guardian. Prince’s Digest, 44. Under that act, both might be joined in the same action; but no suit could be brought against the surety in the first instance, unless the guardian was without the limits of the State. But, as stated, the present code gives the right to sue the surety alone when the “guardian is dead and his estate unrepresented.” In such ease no demand is necessary, as there is no one upon whom a demand could be made. The right to sue the surety is based on a breach of the bond by the guardian. When the evidence shows a devastavit by the guardian, a breach of the bond is shown, and the liability of the surety is established. In this case the devastavit by the guardian was proved. The guardian died intestate and insolvent, and his estate was unrepresented. There was nothing to administer, as all the property he died possessed of had been set apart to his widow as a year’s support, a right superior to that of these wards or their new guardian. The only possible recourse to the wards was their guardian’s bond executed for the express purpose of protecting them in just such an extremity.

We think, under the undisputed facts and the law, that no other verdict could have been justly rendered, and that the judgment refusing the new trial should be affirmed.

Judgment affirmed.


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    434.
    HARDY v. HARDY.
    1. Exceptions to the answer of the magistrate to a writ of certiorari, timely made in writing, and specifically pointing out the defects in said answer, should be sustained, where it appears that the omissions of the answer are of matters essential and material to a proper decision of the case by the reviewing court. The return of the magistrate to the writ of certiorari should include all the proceedings in the cause.
    2. An unsworn verbal report made to the court by three persons selected by the parties to pending litigation, to settle the matters therein in controversy between them, can not legally be made the judgment of the . court, where it appears that there was no order of the court referring the case to the three persons, and that said report was simply the opinion of the three persons, formed without hearing evidence, or giving the party against whom the report was made an opportunity of being heard or of contesting the truth of such report.
    3. A judgment of a justice of the peace in a suit on an open account, not verified by the plaintiff, or proved by evidence, is unauthorized, and should be set aside on certiorari.
    Certiorari, from Jasper superior court — Judge Lewis. March. 29, 1907.
    Submitted June 25,
    Decided October 3, 1907.

      A. Y. Clement, for plaintiff in error. Doyle Campbell, contra.
   Hill, C. J.

W. G-. Hardy sued Mrs. A. J. Hardy upon an open account in a justice’s court. On the day set for the trial, neither party being represented by counsel, they agreed to submit the matter in controversy to three arbitrators who were to make an investigation of the facts and make a report to the court, which report was to be made the judgment of the court. The three arbitrators so called,, without hearing any evidence, after a personal examination of the matters in controversy upon which the account was based, made a verbal report to the court, which report was made the judgment of the court. This report was made without giving either party any notice thereof, and without any opportunity to be heard. Thereupon the defendant, against whom the report was made and judgment was entered, petitioned the superior court for writ of certiorari, which was granted. This petition set forth the following assignments of error:

“1. The court erred in rendering judgment against petitioner, because, after said case was submitted to arbitration by agreement of parties, as hereinbefore set out, said case being withdrawn from court for that purpose, said court had no jurisdiction to render judgment therein.
“2. The court erred in rendering judgment against petitioner, because, after agreement of withdrawal and submission to arbitration in the presence of the presiding magistrate, petitioner, having filed no plea, did not file one after said agreement, the purpose and effect of said agreement being to transfer said ease from said court to said arbitrators chosen for adjudication; and consequently said court had no jurisdiction at the time it rendered said judgment, and petitioner was deprived of an opportunity to defend and has not had her day in court.
“3. The court erred in rendering judgment, because the presiding magistrate was from an adjoining district, it not appearing that M. P. Stone, N. P. and ex-officio J. P., was not present, and was disqualified to sit; said presiding magistrate sitting in said case without the knowledge or consent of petitioner, and after consent to arbitration as aforesaid, and petitioner had left the court grounds.
“4. The court erred in rendering said judgment, because there was no evidence or testimony under oath whatever upon which to base the judgment.
“5. The court erred in rendering said judgment upon the unsworn statement of said three unsworn arbitrators, who them.selves had not heard one sjdlable of the evidence, and based their ■opinion solely upon rumor and their personal knowledge.
“6. The court erred in making the said unsworn statement •of said unsworn arbitrators the judgment of the court.
“7. The court erred in making the opinion of said arbitrators the judgment of the court, because they had not determined and passed upon matters in controversy according to law, of which fact the court was cognizant, defendant not having any of her ■rights to a fair and impartial trial before said arbitrators.”

The presiding magistrate made the following answer:

“^Replying specifically to the allegations in said petition, respondent says: That M. P. Stone asked me to preside in the •case, he being disqualified, and I was present on the day of the irial; and when court was opened before the case was called, Mr. Gordon Hardy and Mr. Will Smith prevailed with Mrs. A. J. Hardy and W. G. Hardy to pick three men from the crowd present, to go out to Mrs. Hardy’s house and estimate what lumber had not been used on the- house and to report back to court, and also damage on any lumber used on house, if any. The men were Jim Pope, William Lloyd, and Walter Evans. W. G. Hardy-agreed to take back all lumber unused, at the price she was to pay for it delivered at the house, and also whatever damages they said to give credit for it; and Mrs. Hardy agreed to the proposition and agreed to acknowledge to judgment to the balance; and they came back and reported to the court the lumber unused, but' not any damages on house; and it was deducted and judgment entered up for the balance and costs.”

Before the call of the certiorari in the superior court, the plaintiff in certiorari filed written exceptions to the answer, on the grounds, that it was insufficient and did not reply specifically to-the allegations in the petition; that said answer did not deny or admit the material allegations in pars. 2, 3, and 4 of the petition, par. 2 alleging that the said judgment complained of was rendered by a notary public and ex-officio justice of the peace of an adjoining district, and without knowledge or consent of petitioner, after the verbal agreement to submit the case to arbitration, and after petitioner, relying upon said agreement, had gone home; par. 3 alleging that petitioner had not filed any plea to said suit in court, because she regarded the arbitrators as the tribunal to pass upon the matters in controversy, and had gone home, and she expected said arbitrators to notify her when- and where they would hear evidence and' determine the matter, and she did not know that they were going to report the matter to court without evidence, but thought they would hear her evidence and determine the matter out of court and give due notice to all parties; par. 4 alleging that neither party was represented by counsel, that submission to arbitration was in parol, that said arbitrators were not sworn, no evidence or sworn testimony was submitted to them, and petitioner was not notified when and where said arbitrators, would hear evidence and pass upon the matters in controversy, and that said arbitrators made a verbal report to the court without having heard any evidence, said statement or report not having been under oath; whereupon judgment was rendered against petitioner by the presiding justice; that petitioner was not notified by the arbitrators, nor by the court, and had no opportunity to present her case to the arbitrators or to the court. Petitioner further excépted to the answer on the ground that said answer did not embrace, nor was there sent up with it, any copy or. copies ■of the proceedings had in. the ease. On hearing the exceptions, the court overruled the same, and rendered a judgment that the ■certiorari be not sustained, and also rendered final judgment against the plaintiff in certiorari.

We think the answer of the magistrate was incomplete in the particulars specified by the exceptions. The allegations of the petition as contained in pars. 2, 3, and 4, were material to the proper decision of the plaintiff’s casé, and she was entitled to a specific answer fully verifying these allegations. The allegations in a certiorari ought either to be fully answered, or assumed as true for the purpose of the decision; and if the answers filed are not full, they should be made so. Civil Code, § 4647; Marchman v. Todd, 15 Ga. 25. We think also that the return of the magistrate was incomplete, in that it failed to certify and send up any of the proceedings in the case. Civil Code,- § 4637.

It is manifest that the so-called arbitration was in no sense statutory. If, under the facts stated and verified by the answer of the magistrate, the selection of the three men to make a report on the matter in controversy between the parties could be considered as a common-law submission of such matters to arbitration, surely a verbal report, made without having heard any evidence, and unsupported even by the verification of the arbitrators themselves, was wholly insufficient upon which to base a judgment .against the defendant. Under an arbitration at common law, the award is binding on the party submitting; but the award in such case can only be made the foundation of an action, and is not entitled to be made a judgment of the court. Crane v. Barry, 47 Ga. 478; Sisson v. Pittman, 113 Ga. 168. There is no order of the court in this case submitting the matters in controversy, and the judgment is based upon the unsworn statement of three men selected by the parties, who arrived at their conclusion without evidence and without giving the parties an- opportunity to be heard. The account sued on seems not to have been verified by the plaintiff in the justice’s court. The alleged agreement by the defendant (plaintiff in certiorari), that she would “acknowledge-to judgment” the report of the three men selected, appears to have been made in the personal and not in the judicial presence of the justice, and was not therefore binding upon her as an admission made on the trial of the case in judicio.

We conclude that the justice erred in entering up judgment against the defendant, and that the judge of the superior court erred in not sustaining the certiorari and setting aside the judgment and remanding the case to the justice court to be tried according to some .legal procedure. Judgment reversed.


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    538.
    GRIFFIN v. THE STATE.
    1. Whila the guilt of a defendant, charged with crime, may be inferred . from circumstances satisfactorily proved which are inconsistent with innocence, the circumstances relied upon must be affirmatively established and legally proved.
    2. Evidence that the defendant was present at a game of cards, and ran, upon the approach of officers armed with pistols, is not (in the absence of evidence that such defendant either played or bet for money, or had in his hands or “near him either cards or money) sufficient to establish the guilt of such defendant beyond a reasonable doubt within the meaning of the Penal Code, §984. Neither presence nor flight, nor both together, without more, is conclusive of guilt.
    3. The belief of a witness can not supply the place of substantive material facts.'
    Indictment for gaming, from Ben Hill superior court — Judge Whipple. May 20, 1907.
    Argued July 17,
    Decided October 3, 1907.

      E. W. Ryman, for plaintiff in error. Walter F. George, solicitor-general, E. D. Graham, A. J. McDonald, contra.
   Russell, J.

The defendant was accused of gaming. The evidence showed that he was in company with others, some of whom were undoubtedly engaged in playing and betting at cards for money. Upon the approach of the chief of police of Fitzgerald, and an assistant, who presented a pistol and called to the negroes “to hold up,” the defendant incontinently fled, and the chief of police tore the defendant’s shirt in the struggle to retain the prisoner. The defendant was convicted. A fact can be proved by circumstantial evidence as well as by direct proof. Gaming is one of those offenses which ordinarily must be proved by circumstantial evidence, if at all; and so well is the taste of some of our African citizens for petty gambling known, that a nocturnal gathering in a secluded spot, where the tableau is presented of several negroes seated or squatted around a quilt on which are cards and money, raises a violent suspicion of guilt against any one of the number who may be in proximity to the quilt, the cards, or the money. But the law does not authorize conviction upon suspicion, no matter how violent, nor relax the rule laid in the Penal Code, §984, for the mere reason that gambling is detestable, that gamblers should be punished, and that proof of guilt is hard to obtain. The same rule applies to gaming as to all other offenses. “To warrant a conviction on circumstantial evidence, the proved facts must not only be consistent with the hypothesis of guilt, but must exclude every other reasonable hypothesis save that of the guilt-of the accused.” Circumstances which authorize a mere conjecture of guilt are not sufficient to warrant a conviction, and the evidence, when entirely circumstantial, should connect the defendant with the criminal act. The only facts positively proved in this case were, that the defendant was present where gambling was going on', and that .he ran when accosted to the accompaniment of a pistol. True, one of the witnesses for the State testified that “all of them seemed to be engaged in a game of cards. The cards had been dealt around, and all of the men loolced lilce had cards, either in his hands or in front of him on the quilt, and most, if not all, had money in front.of them.” But upon cross-examination the same witness testified, as did the only other witness for the State, in effect, “I can not swear positively that the defendant had cards in his hands or money in front of him, or that he was actually playing and betting in the game. The witness’s entire knowledge with reference to the defendant’s connection with the game, if he had any, is summed up in the statement following, that “he was with the others in a circle around the quilt.” The gratuitous statement that he appeared to be engaged in the game was only an expression of opinion on the part of the witness, prejudicial to the defendant, and not proper evidence to be considered by the jury. As pointed out in Mimbs v. State, 2 Ga. App. 387, 58 S. E. 499, the word, “seem” may be opinionative or positive, according to the context.

Admitting that gambling was going on in the hallway, and that the defendant was present, it seems to us that the defendant should have been connected with the gambling in some way; that the State should have proved, not that others had cards, but that this defendant handled some card in the game; not that others had money, but that this defendant had some interest, present or prospective, in some portion, at least, of the money seen by the officers. While the main witness for the State testified that they all seemed to be engaged in the game, he positively declined to swear that “the defendant had cards in his hand or money in front of him.” If the witness did not pretend to know these facts, how could the jury know it? And if the jury did not know at least this much, how could the}'' infer participation and guilty presence?

Nor do we think the circumstance of flight, under the facts disclosed in the record, adds any very great weight to the evidence of guilt. Proof of flight is, at best, only equivocal evidence and subject to explanation. We think this defendant’s flight, whether he were guilty or innocent, is easily explained when we consider the fact that the gathering (whether this defendant was one of the illegal participants or not) was suddenly surprised by an unex-. pected visitor who had noiselessly reached the top of'the stairway, shouted for attention, and presented to their astonished eyes a gleaming revolver. Had the defendant been ever so innocent, it would have been hard for him to resist the contagious impulse, which overwhelmed those who were guilty, to fly because they fled. In Harmon v. State, 120 Ga. 197, it was held.that “evidence that the defendant and three others were lying on the ground in a secluded spot with money before them, that each had cards in his hands, and that' upon being discovered all attempted to escape, was sufficient to sustain a verdict that the defendant was playing and betting at a game played with cards for money.” And it has been decided by this court in Hicks v. State, 1 Ga. App. 722, following the decision in Pacetti v. State, 82 Ga. 297, that inculpatory facts will authorize convictions of gaming. But in alii cases the facts must be connected with the defendant. If this defendant had been shown to have been in possession of cards, as was shown in the Harmon case, or the keeper of the room embellished with gaming devices and accessories, as shown in the Pacetti and Hicks cases, the verdict of guilty, would have been authorized. But mere presence or flight to avoid arrest, or both together, is not inconsistent with innocence. Judgment reversed.