text:
    825.
    CROFT v. BROXTON ARTIFICIAL STONE WORKS.
    Where a defendant who is sued in a justice’s court for less than $50 pleads a set-off to the amount of $84, and a judgment is rendered against him, he can enter an appeal from the judgment of the justice to a jury in the superior court.

      Appeal, from Coffee superior court. — Judge Parker. October 8, 1907.
    Submitted January 20,
    Decided March 30, 1908.

      Lankford & Dickerson, for plaintiff in error.

      Philip Newbern, McDonald & Quincey, contra.
   Hill, C. J.

The Broxton Artificial Stone Works brought suit against Croft in a justice’s court, for $51, being a balance due on his subscription for ten shares of stock. When the case was called for trial, the attorney for the plaintiff, with the consent of the attorney for the defendant, reduced the amount for which the suit was brought, from $51 to $43.39. The defendant pleaded a set-off to the amount of $84. A judgment was rendered in favor of the plaintiff, for $43.41; and the defendant entered an appeal to a jury in the superior court. When the case was called in the superior court, a motion was made to dismiss the appeal, because the amount claimed in the justice’s court was less than $50, and because the amount in controversy at the trial before the justice was not more than $50, and therefore there was no right of appeal from the judgment rendered in the justice’s court to a jury in the superior court. The court sustained the motion and dismissed the appeal, and this judgment is assigned as error.

The single question made in the bill of exceptions has been expressly ruled by the Supreme Court in Reedy v. Helms, 54 Ga. 122, where it is held that where a defendant was sued in the justice’s court for less than $50, and pleaded a set-off to the amount of $90, and the justice rendered a judgment in favor of the plaintiff for $28, an appeal lay from the judgment of the magistrate. In the opinion it is said, “Whether the litigation is produced directly by the claim set up by the plaintiff, or by plea of defendant against his adversary, the principle is the same; the reason is as strong for a jury trial in one case as in the other.” This ruling was followed in the case of Wheeless v. Carter, 120 Ga. 725 (48 S. E. 121). The decision seems to be based upon the idea that a plea of set-off is a cross-action, which would entitle the defendant, to prove his case and have judgment against the plaintiff, if authorized by the evidence. Calhoun v. Citizens Banking Co., 113 Ga. 621 (38 S. E. 977). In determining whether an appeal, or certiorari, is the proper remedy, the pleadings which embrace the defendant’s claim of set-off determine the amount involved in the suit. Bell v. Davis, 93 Ga. 233 (18 S. E. 647). The plaintiff’s suit in the justice’s court being originally for $51, under the decision in the ease of Bell v. Davis, supra, it would seem that the right of appeal existed, notwithstanding the reduction from the amount of the claim made at the trial.

It is insisted by counsel for defendant in error fhat the plaintiff in error can not in this court rely upon a plea of set-off, since he did not insist on it in resistance to the motion to dismiss the appeal in the superior court. The bill of exceptions does not specify what objection the plaintiff in error urged in the court below to the dismissal of his appeal, but it does specify that the motion to dismiss was based upon the ground that “the amount in controversy at the trial before the justice of the peace was not more than $50, so as to allow the losing party the privilege of appealing the same to a jury in the superior court.” The court’s attention was therefore called to the amount in controversy, which embraced not only the amount sued for, but also the amount of the set-off.

Judgment reversed.


source: Caselaw Access Project

author: Russell, J.

license: Public Domain

text:
    827.
    COWETA COUNTY v. CENTRAL OF GEORGIA RAILWAY COMPANY.
    1. When, by the sharp process of subtraction and elimination, which our laws favor, all of the issues between parties have been reduced to a single point, the law applicable to the single remaining issue should be administered. Evidence not material to the issue is irrelevant, and instructions upon the law, although correct in the abstract, if not applicable to that issue are erroneous. The law to be applied by the court must be law pertinent to the contested issue of fact.
    2. A plaintiff, by showing the delivery of his goods into the possession of a common carrier for the purpose of transportation, and establishing the fact of loss, raises a presumption of liability on the part of the defendant for their value, if the selfsame evidence does not show that the consequent loss was occasioned by the plaintiff’s own negligence. The presumption of liability raised by section 2264 of the Civil Code may be rebutted, if it appears that'the injury was caused by the plaintiff himself, whether the act which caused the injury be due to negligence or design. In other words, the provisions of that section have no reference to a ease where the loss is attributable, either in whole or in part, to the act of the shipper himself.

      •3. While a carrier is liable, as an insurer, for the loss of freight which he accepts for carriage, and while generally he is required to accept for carriage all freight properly packed and delivered to him for the purpose of transportation, still a carrier is not required to accept for shipment all freight which may be tendered. If a carrier knows an article tendered him for carriage is injurious to the public health, public peace, or morals, or is likely to destroy the property of others, or if the property tendered for shipment is in such condition that it can not safely be transported, a carrier has the right to decline to receive the proposed shipment.
    4. The court’s charge did not intimate any opinion as to what had been proved, or withdraw from the jury the determination of what facts were necessary to constitute negligence. The question of negligence was not involved in the ease, if the jury believed that the loss was caused by the act of the plaintiff itself. A carrier may be liable for the loss of freight, in spite of the most extraordinary diligence. But any shipper who, either before or after shipment, directly or indirectly, intentionally or unintentionally, causes the injury or destruction of his own property can not make the carrier pay for it.
    5. Evidence, whether objected to or not, can be as effectually withdrawn by means of the charge of the court as by a ruling during the course of the trial.
    6. The verdict for the defendant was demanded by the evidence. The charge of the court was clear and easy to be understood, and the only issues involved were fully and clearly presented. There may be some minor verbal inaccuracies, to be detected by a microscopic, grammatical analysis,'but these do not afford any legal ground for a reversal.
    Action for damages, from city court of Newnan — Judge Freeman. October 28, 1907.
    Argued January 20,
    Decided March 30, 1908.

      W. L. Stallings, B. O. Jones, for plaintiff.

      Hall é Cleveland, J. E. Hall, W. C. Wright, for defendant.
   Russell, J.

Coweta County excepts to the overruling of a ínotion for a new trial. It appears from the record that the plaintiff in error brought suit against the Central of Georgia Itailway Company, to recover as damages $597.44, the value of a convict car or wagon and its contents, burned while on one of the flat-cars of the defendant, as well as $25, the value of a grade plow. Upon the trial the jury returned a verdict in favor of the defendant. The motion for new trial, in addition to the general grounds, assigns error, in the nine grounds of the amended motion, on the rejection and introduction of certain testimony, on certain instructions of the court to the jury, and on the refusal of the court to charge in accordance with certain requests presented in writing by the plaintiff.

We find'no reversible error, either in the rulings of the court upon the testimony or in the instructions to the jury. Summarized, all of the grounds of the motion for new trial presented but two complaints. The first is that the case was not tried upon the theory that the plaintiff was entitled to recover unless the loss was occasioned by the act of God' or the public enemies of the State. The second complaint is that the court judicially determined what constituted negligence under the facts in the case, and thus withdrew from the jury the plaintiff’s contention upon this subject. In every ease the issues are made by the pleadings, and the verdict should be in accordance with the law applicable to the particular facts shown in the testimony. The plaintiff’s petition alleged, that S. S. Nash, as superintendent of Coweta county chain-gang and in behalf of the county, delivered to the railroad company, for transportation from Senoia to Newnan, a certain convict car and its contents; that the agent of the company accepted said car for transportation, and that while in the company’s possession the car was destroyed by fire, without the consent or negligence of the plaintiff, its officers, or employees; and that the failure of the company to deliver the convict car and its contents at Newnan on demand rendered the company liable for its value. In its answer the defendant denied these allegations and set up, as a defense, that if the property of the plaintiff was injured and damaged at the time alleged, it was not due to the fault or negligence of the defendant, its agents or employees. It pleaded, that the destruction of the property was due to the direct act of the agents and employees of the plaintiff, without the knowledge of the defendant or its employees; that the damage, if any, was caused by fire left inside the car by the agents and employees of the plaintiff, without the knowledge of the defendant.

The evidence introduced in support of the pleadings was practically without contradiction as to any material matter. Under the evidence introduced in behalf of the plaintiff itself, the controlling issue in the case was created. It was a question of fact whether the fire which destroyed the car and its contents was inside of the car without the -knowledge of the defendant at the time that the car was delivered to it for shipment. The superintendent of the Coweta county chain-gang desired to move the convicts from Senoia to Newnan. He arranged with the defendant’s agent at Senoia to provide flat cars upon which to load his convict cars, which were sleeping cages in which the convicts, slept. According to the uncontradicted testimony, the convict cars were provided with stoves, and the cages were covered with plank, to keep out the rain and cold. The cars are constructed very much like a freight-car with the doors and windows fastened up. The evening before the cars were delivered to the company,'they were brought upon the platform of the depot, and the convicts slept in them that night. It was in February and the weather was cold. Mr. Nash, who had charge of the cars, testified that there was fire in the stove in the car which was burned, the night before and that morning, and the ear was seen to be on fire about a half hour after it was placed upon the railway company’s fiat car. Mr. Nash testified further, that all of the fire was from the inside; there was no fire on the outside when he went to try to save the car.' The convict cars were loaded on the flat cars of the railway company hy the convicts, under the direction of Mr. Nash, who was the Coweta county superintendent. Before the agent of the railway company knew that they were placed upon the fiat ears, or had examined them, he was told that they had been put upon the flat cars, and he went out to the track and inspected them, to ascertain whether they were securely fastened on.the flat cars, and, not being fully satisfied, he had additional planks nailed in front and behind the wheels, to make the cars perfectly secure and steady. When the freight-train came in, an engine backed in on the sidetrack and carried these ears out on the main line, and it was then discovered that one of the convict cars was on fire. It is undisputed, in the testimony, that those who first discovered the fire saw the smoke issuing from the inside of the ear; and there was no evidence that there was any fire whatever on the outside.

When, by the sharp process of subtraction and elimination, which our laws favor, all of the issues between parties have been reduced to a single point, the law applicable to the single remaining issue should be administered. Evidence not material to the issue is irrelevant, and instructions upon the law, although correct in the abstract, if not applicable to that issue, are erroneous. The law to be applied by the court must be law pertinent to the contested issue of fact. From the above statement of the undisputed evidence it is clearly to be seen that there was but one question to be submitted to the jury, and that was whether the defendant company knew or ought to have known, at the time it ac- ' eepted the car for carriage to Newnan, that there was fire inside the car. In other words, did the defendant assume a risk unusual and. hazardous, and undertake to insure the plaintiff against the effects of its own negligence ? A common carrier is bound to use extraordinary diligence in the transportation of goods for the public, and in case of loss the presumption of law is against him, and no excuse avails him unless the loss was occasioned by the act of God or the public enemies of the State. This principle of law wqs given to the jury as favorably as the plaintiff could expect, and applied to the pending ease in language not to be misunderstood, in the following instruction by the court: “When plaintiff introduced evidence and made it appear to you, if they did make it appear to you, that the county delivered this property to the defendant company for shipment to Newnan, Georgia, and these articles of goods were not delivered to the county in Newnan, then the plaintiff would be entitled to recover. The law requires the defendant to deliver the property they have received and contracted to deliver.” We think that this instruction was sufficient compliance with the written request of the plaintiff that the jury be instructed that “at common law and under the statute a common carrier was an insurer of the goods which he’ undertook to transport. Such is his legal liability, and he is liable unless the loss was occasioned by the act of God or the public enemies of the State.” But while the prima facie liability of the carrier is one of the settled principles of the law, this principle, like every other, is qualified by others, which the experience of ages has shown to be inherent in justice. One of these is, that no one can take advantage of his own wrong; and from this is derived the rule as to which Elliott, in his work on Railroads (Yol. 4, §1454, p. 2263), says: “There never was a time when carriers could be held liable where the loss was caused by the wrong or fault of the shipper.”

It is not clear, under the evidence in this case, that the question involved is one purely or wholly of negligence. But if it be viewed as such, it is settled that “if the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, lie is not entitled to recover.” Civil Code, §3830. But whether the subject of negligence be involved or not, it is true in all cases that no person can saddle another with the responsibility or liability for the consequences of an act which he himself committed. This general principle is recognized in §3893 of the Civil Code; and §2322 expressly declares that “no person shall recover damages from a railroad company for injury to . . his property where the same is done by his consent, or is caused by his own negligence. If the complainant and the agents of the company are both at fault, the former may recover, but the damages shall be diminished by the jury in proportion to the amount of the default attributable to him.”

As we view the evidence in the present case, the plaintiff, by showing the delivery of its goods into the possession of the defendant company, for the purpose of transportation, and establishing the fact of loss, might have raised a presumption of liability on the part of the defendant for their value, if the selfsame evidence did not show that the loss was not due to the negligence of the defendant, but to that of the plaintiff itself. The presumption of liability, raised by §2264 of the Civil Code, when that section is construed with the other sections to which we have referred, may certainly be rebutted, if it appears that the injury was caused by the plaintiff itself, whether the act which caused the injury be due to negligence or design. A carrier, where loss of goods received by it for shipment is shown, is generally liable, unless it is made to appear that the loss was occasioned by the act of God or the public enemies of the State; but certainly a carrier would not be liable if, after entrusting my goods to it for carriage, I myself should set fire to them and destroy them, and the fact should be established. In other words, the provisions of §2264 -of the Civil Code have no reference to a case where the loss is attributable, either in whole or in part, to the act of the shipper himself. The section includes, perhaps, responsibility for the acts of all others than the shipper himself, but must be construed in connection with §2322. As it was undisputed, in the evidence, that the fire inside the convict car, if any, had been built by the agents or employees of plaintiff county,- and that the defendant carrier had no knowledge of its existence, the court did not err in felling the jury that the only issue for. their determination was whether the car was burned by fire from the inside, or by fire from the outside, set out by the shifting engine of the defendant company.

Mr: Hale, in his excellent work on Bailments and Carriers (§81, p. 351), adds these qualifications to the rule that shippers are entitled to recover for the loss of their goods, except where the same is caused by the act of God or the public enemies: (1) where the loss is caused by the act of the shipper; (2) where the public authority intervenes; (3) where the inherent nature of the goods shipped must be taken into consideration. On page 365, the principle'to which we have adverted is laid down: “Common carriers are 'not insurers against losses caused by fraud or fault of the shipper.” The statement on page 367, that “a hidden defect in the packing is the act of the shipper, for which the carrier is not responsible,” is also applicable to the undisputed facts in this case, in that it appears that the car which was burned was placed upon the flat car by the employees of the county, with all of the windows fastened and doors locked, so that there was no opportunity for the agent of the company to see, nor any reason for him to suspect,, that there was fire in the car; nor was any means afforded it to know whether the car was packed with this defect hidden therein, nor was he bound to ascertain that there was any fire in it and likely to destroy it. As the agent of the carrier, he had the right to presume that the shipper’s agent and servant would not be guilty of the wrong of requiring the transportation of a shipment which contained within itself the means of its own destruction, — certainly not without at least notifying him to that effect and allowing him to determine whether he was willing to accept for carriage a shipment whose nature was such that the carrier would have the right to decline to accept it for shipment.

While a carrier is liable, as an insurer, for the loss of freight which he accepts for carriage, and while generally, he is required to accept for carriage all freight properly packed and delivered to him for the purpose of transportation, still a carrier is- not required to accept for shipment any freight which may be tendered. If a carrier knows that an article tendered him for carriage is injurious to the public health, public peace or morals, or is likely to destroy the property of others, or if the property tendered for shipment is in such condition that it can not safely be transported, he has the right to decline to receive the proposed shipment. The above statement is not exhaustive of all of the cases in which a carrier would be authorized to refuse to accept freight. We mention only some instances, in which it would be not only the right, but the duty, of a common carrier not to endanger persons or property of others.

(a) The plaintiff in error insists, in the 6th ground of the motion for new trial, that the court erred in charging the jury as follows: “If the evidence satisfies, if the preponderance of the evidence satisfies you, that the defense set up is true, that is to say, if the goods were destroyed by reason of the fire left in it when it was put into the possession of the company, then I charge you that the company is not liable to Coweta County for damages. The law does not hold the common carrier, in that case, liable.” The plaintiff in error insists that this charge was erroneous for three reasons: First, as an expression of opinion on the part of the court. Second, that it was the determination by the court upon the subject of what was negligence. Third, because it eliminated the question of knowledge of the fire on the part of the defendant from the consideration of the jury, and instructed the jury that it was immaterial whether the defendant knew of the existence of the fire in the car or not. There is no merit in the contention that this charge contains an expression of opinion that there was fire left in the car by the plaintiff’s agents; because all that the judge said upon that subject relates back to the beginning of the sentence, in which the court says, as a prelude to all that follows: “If the preponderance of the evidence satisfies you.” And leaving out the intervening parenthetical sentence, the charge complained of is simply this: “If the evidence satisfies you that the goods were destroyed by reason of the fire left there, then I charge you that the company is not liable,” etc. Surely no jury could conceive from this language that the court was expressing an opinion that the fire was left there; especially in view of the fact that the court had just previously told the jury (what affords one of plaintiff’s grounds of exception) that the only issue in the case was whether the fire in the stove in the car, or the fire from the outside, caused the destruction of the convict car, and- twice, later in the charge, instructed the jury to determine whether there was fire left in the stove or not.

(b) As to the ’complaint that the court’s charge amounted to a ■determination by the court of what facts were necessary to constitute negligence in the case, negligence is in all cases a question of fact, to be determined by the jury, and it is axiomatic that an instruction by the court to the jury that any act or acts constitute negligence, unless such have been made negligence by statute, is reversible error. In the present case, however, it was not primarily a question of negligence. The question was whether the act of the plaintiff itself caused the loss. It might be shown that the act of the plaintiff which caused the loss, if an act of the plaintiff did cause the loss, was due to negligence and not to design; but if the jury were- satisfied that, after all, the fire which caused the damage to the convict car was made by the shipper himself, it would be immaterial whether it was made for the purpose of burning the goods, or carelessly left by the shipper himself, without the knowledge of the carrier, where it would probably have that effect.

(c) The third exception to the charge contained in the 6th ground of the motion for new trial is that it failed to instruct the jury that the plaintiff might recover if the defendant knew or might have known of the existence of the fire in the car. The charge of the court might have been subject to this objection, if the excerpt quoted above had been all that was said by the’court upon the subject. But such is not the case. In several portions of the charge the court called the attention of the jury to the fact that if the railway accepted the car with knowledge of the fact that there was fire therein, it would not be relieved from liability. The court also charged the jury that the company was bound 'to exercise extraordinary diligence; and on the other hand, as to the plaintiff, the court charged as follows: “The absence of such diligence is termed slight neglect. The county would be entitled to recover in that event, provided the company has not shown some legal defense, some legal reason why the plaintiff, in that state of facts, is not entitled to recover.”

The'plaintiff in error insists, in the 8th ground of the motion for new trial, that the effect of the court’s charge therein complained of was-to instruct the jury that if the county left in the stove the fire which caused the burning of the ear, such conduct on the part of the county would be negligence, and that if they found that the fire could not have been communicated to the convict car from the outside, they should find for the defendant: The general complaint in this ground of the motion is that the court did not leave it for the jury (if the jury found as a matter of fact that the fire was caused by the act of the plaintiff or its servants) to say whether this act would or would not be negligence, or, if negligence, did not allow the jury to pass upon the question as to whether, as contributory negligence, it should entirely defeat the plaintiff’s right to recover. There is no merit in any of these exceptions, for the reason that there is no evidence that the defendant or its agent either knew or could have known, when it accepted the car for carriage and secured it to its fiat car, that there was fire in the car. The jury were instructed that if the fire was caused by the defendant or any of its agencies, the company would be liable; and very properly instructed, on the other hand, that if the jury found that the fire was caused by the county itself, through some of its agents, the defendant company should not be held liable. If the jury found the latter to be true, and found that the defendant had no knowledge of the fact that there was fire in the car, the question of negligence was wholly immaterial. While it may be true, as insisted by counsel for plaintiff in error, that it is not, as a matter of law, negligent to leave fire in a car, we know of no rule of law which requires, a carrier to transport, as freight, articles containing fire. On the contrary, we~hold that it would have been the duty of the carrier (as it was the duty of the shipper, upon delivering the shipment, to put it in a condition to be shipped) to reject a shipment with fire in it, and not to receive it until all fire was extinguished. All of the complaints of the judge’s charge overlook the fact that it is the duty of the shipper to deliver the shipment in such condition as that -it can be safely transported. To deliver for shipment freight in which fire is concealed might or might not be a fraud on the part of the shipper, but in any event it must be held to be such a fault on the part of the shipper or such a defect in the packing or preparation on the part of the shipper, as carriers are .not required to insure against. “The liability of common carriers is an extraordinary one, and does not depend upon the question of negligence or no negligence. . . They are in effect insurers, . . and according to the old common-law rule can escape liability only” when “the loss was caused by the act of God, or by the act of the public enemy. The modem rule is more liberal, for to the old common-law rule . -. have been added . . acts of public authorities, and loss or injury attributable to the inherent nature of the goods. It is sometimes said that another ground has been added by the modern law, namely that arising from the acts of the shipper, but we think there never was a time when the carrier could be held liable where the loss was caused by the wrong or fault of the shipper.” 4 Elliott on Eailroads (ed. 1897), §1454, p. 2262-. We agree with the conclusion of this text-writer, because there has never been a time or a case among English-speaking people in which the principle was not recognized that one could not take advantage of his own wrong. Where- a shipper wrongfully requires the transportation of an article which is in a condition unfit to be shipped, his wrong is a proximate cause of the injury, and the carrier is, therefore, not liable. This court adheres to a strict construction of §2264 of the Civil Code. In all cases where goods have been delivered to a carrier for transportation and where the loss is in no wise attributable to the act of the shipper himself, the rule should not be relaxed. A carrier may be liable in spite of the most extraordinary diligence. In Ga. So. & Fla. R. Co. v. Barfield, 1 Ga. App. 203 (58 S. E. 236), we held that “No injury can be said to be the act of God which can, under any fair view, be attributed to the negligence of man.” But if one, either before or after shipment, directly or indirectly, intentionally or unintentionally, injures or destroys his own property, he can not make another pay for it.

The verdict for the defendant was demanded by the evidence, and the assignments of error contained in the remaining .grounds of the motion for new trial do hot require more than a brief mention. The first and second grounds of the amendment to the motion complain of the exclusion by the court of the following testimony of the witness S. S. Nash: “I told Tom to look after the fire” (this witness having testified that he sent into the car this Tom, a negro convict, and “told Tom to look after the fire”). The plaintiff wished to show the diligence of its superintendent in protecting the property, and, upon this ground, insisted that the evidence be not excluded. Even if this evidence was competent, it was' immaterial, because it did not matter what directions the superintendent had given Tom. The vital question was not whether he told Tom to put out the fire, but whether Tom did it.

The court also refused to allow Mr. Nash to testify that he directed one of his servants to see that all the fire in the stove was extinguished. This testimony was likewise irrelevant, for the reasons just above stated, and was properly repelled.

If the court erred in admitting the shipping orders, which were drawn up coincidently with the bill of lading, and which, like the bill of lading, were unsigned, the error was corrected by the court in the conclusion of his charge, by an explicit instruction to the jury that the plaintiff was not bound by any of the stipulations in the paper, unless it was signed. As it was.undisputed that neither the bill of lading nor the shipping order was signed, this effectually withdrew that testimony from the jury; and the shipping order does not appear in the brief of evidence in the record. It appears that when the plaintiff’s counsel objected to the introduction of the shipping orders (which were really issued contemporaneously and as a part of the bill of lading, the shipping order being signed b.y the shipper and the bill of lading by the carrier, and the bill of lading having been produced in response to a notice to produce, served by the plaintiff upon the defendant) the judge reserved the decision upon the point; he made no ruling thereon during the trial; and it may, therefore, be considered to have been admitted over the plaintiff’s objection. But “evidence, whether objected to or not, can be as effectually withdrawn by the charge of the court as by a ruling to that effect during the course of the trial.” In a case where, as in the present instance, it was the last instruction to the jury before they retired to consider their verdict, the withdrawal of the evidence in the charge would be more likely to be remembered by the jury than an earlier ruling upon the subject.

The concluding ground of the motion excepts to the charge of the court as a whole, as being confusing and for failing to cover the issues made in the case. We think the charge of the court was clear and easy to be understood, and that the only issues involved were fully and clearly presented. There may be some minor verbal inaccuracies to be detected by a microscopic, grammatical analysis, but these do not afford any legal ground for reversing the judgment refusing a new trial.

Judgment affirmed.

Powell, J., disqualified.


text:
    831.
    AMERICAN INVESTMENT CO. v. CABLE CO.
    1. A writ of error will not be dismissed by this court where there is enough in the bill of exceptions or transcript of the record presented, or both, to enable the court to ascertain substantially the real ques- • tions in the case, which the parties seek to have decided therein.
    2. The bond which is prerequisite to the issuance of a writ of certiorari may, in behalf of a corporation petitioning for the writ, be executed by any authorized agent of the corporation. The term “manager,” as applied to a private corporation, indicates one who has the general direction and control of its affairs, and, when used by one in connection with the seal, imports authority to sign in behalf of the corporation. The word “manager” implies agency, control, and presumptively sufficient authority to bind the corporation in a case in which it is an actual party to the case brought up by writ of certiorari.
    3. A corporation may adopt a seal different from its corporate seal, for a special occasion or for a special use; and the seal thus adopted is, for all the intents and purposes for which it is used, the corporate seal for that time and occasion.
    4. Where the seal of a corporation accompanies the signature of one of its officers, prima facie there is a presumption that it was affixed by proper authority. Where a certiorari bond is signed in behalf of a corporation by one whose official designation imports agency, and a scroll or other substitute for the corporate seal is used, it will be presumed, in the absence of evidence to the contrary, that the substitution of the seal used for the special occasion was either specially authorized or within the scope of the general powers of the agent, and a similar effect will be given to the seal thus adopted.
    5. While, by statute, a claimant can not, without the consent of the plaintiff in fi. fa., withdraw his claim more than once, still a claim may be withdrawn by the consent of the plaintiff in ft. fa., or it may be dismissed upon his motion; and in either event the claim may be renewed. Neither a withdrawal of the claim nor its dismissal for want of prosecution, however, is an adjudication of the issue upon its merits or constitutes any bar to the interposition of another claim. The claimant is not allowed of his own motion to withdraw his claim more than • once, because the plaintiff is entitled to prosecute the case to verdict. If, however, the plaintiff in ff. fa. moves a dismissal of the claim, or consents to its withdrawal by the claimant, he waives this right and takes the risk of the interposition of another claim.
    6. There was no error in sustaining the certiorari and in ordering a trial upon the merits of the case.
    Certiorari, from Fulton superior court — Judge Ellis, October 3, 1907.
    Submitted January 20,
    Decided March 30, 1908.
    The American Investment Company had a justice-court execution in its favor levied upon a certain piano, as the property of one Charlie Brown, the defendant in fi. fa. Two- claims to the piano were interposed, — one by Hannah Brown and the other by the Cable Company. It appears from the record that Hannah Brown was the wife of the defendant in fi. fa., and the Cable Company was the original owner of the piano, and sold it upon the instalment plan, reserving the title until the piano should be fully paid for. In the case of the American Investment Company, plaintiff in fi. fa., and Hannah Brown, claimant, the piano was found subject to the fi. fa. Hpon the call of the ease of the American Investment Company, plaintiff in fi. fa., against Charlie Brown, defendant, and the Cable Company, claimant (the claimant and its attorney both being absent), the justice of the peace, upon motion of counsel for the plaintiff in fi. fa., dismissed the company’s claim for want of prosecution. Thereupon the claimant filed the claim which is the subject of the present litigation. The claim case now under consideration coming on to be heard, the plaintiff in fi. fa. moved the court to dismiss the claim, upon the ground that the claimant had filed a previous claim to the identical piano in question, which had been dismissed by the court for want of prosecution, and that this dismissal barred the right to file the second claim. The justice of the peace sustained the motion and dismissed the second claim. Thereupon the Cable Company sued out a writ of certiorari. Hpon the hearing in the superior court, a motion was made to dismiss the certiorari, upon the ground that there was no valid certiorari bond, for the reason that it did not appear that George W. Wilkins was agent, attorney in fact, or attorney at law of the Cable Company, authorized to sign and execute said bond for it, and because no power of attorney appeared, to authorize said Wilkins to execute said bond, and because it did not appear that the bond was executed by the plaintiff in certiorari by its duly authorized agent. The judge of the superior court refused to dismiss the certiorari. The judge then proceeded to pass upon the case, upon its merits, and, on review, sustained the certiorari and directed the justice of the peace to reinstate the claim case and to try the same upon its merits. The order refusing to dismiss the certiorari, and the judgment sustaining the certiorari, were embraced in one judgment. ■ The plaintiff in error excepts, in a single assignment of error, to the overruling of his motion to dismiss the certiorari and to the judgment sustaining the certiorari and reinstating the claim.

      Lowndes Calhoun, for plaintiff.

      Joseph W. & John D. Eumplwies, contra.
   Russell, J.

(After stating the foregoing facts.)

A motion is made by counsel for defendant in error to dismiss the bill of exceptions, upon the insufficiency of the assignment of error. This motion we decline to grant. We are quite familiar with the authorities cited in the brief of counsel for the defendant in error, but these decisions are not in point. The main purpose of the creation of courts for the correction of errors is to have the questions which are presented in the litigation definitely decided. It is the settled policy of this State, as shown by several recent acts of the General Assembly, that the legal merits of every case shall be passed upon by the court of last resort, and not only that, but furthermore that the pathway to justice shall not be made difficult by technicalities. It is our duty to decide the real questions between the parties if there is enough in the record to enable us to “see the point.” In the instant case the bill of exceptions recites that “the court rendered a judgment overruling said motion to dismiss the certiorari, and sustained the certiorari and directing that the justice of the peace reinstate the claim case, and try the same on its merits, to which judgment the American Investment Company, defendant in certiorari, excepted and now excepts, and assigns the same as error.” If the rulings of the judge of the superior court which are complained of had been separate, it would perhaps have been better to have made two assignments. The motion to dismiss the certiorari was oral, and the judge might have passed upon that orally. But inasmuch as both rulings were made subject-matter of a single judgment, and inasmuch as an investigation of the record only clearly discloses the questions involved and presented for our adjudication, we can not hold otherwise than that the assignment of error is sufficient. This court is governed by the same laws and rules of procedure as the Supreme Court, and it is declared in Civil Code, §5569, that “it shall be unlawful for the Supreme Court of Georgia to dismiss any case for any want of technical conformity to the statutes or rules regulating the practice in carrying cases to that court, where there is enough in the bill of exceptions or transcript of the record presented, or both together, to enable the court to ascertain substantially the real questions in the case which the parties seek to have decided therein.”

A writ of certiorari issued without the filing of a legal bond is a nullity. It should never have been issued at all. But the bond, which is an indispensable prerequisite to the issuance of the writ of certiorari, may, in the behalf of a corporation, be executed by any agent of the corporation which is petitioning for the writ who may be either specially or generally authorized to take such action in its behalf. In the present case the bond stated that the “Cable Company, claimant in the above stated case, being dissatisfied with the judgment of the court dismissing said claim, and desiring to certiorari said ease to the superior court, brings Henry T. Patterson and tenders him as its security; and the said Cable Company as principal, and the said Patterson as security,, acknowledge themselves bound,” etc. The bond is signed “The Cable Company, Geo. W. Wilkins, Manager (Seal),” and was approved by the justice of the peace. The affidavit was made by G. W. Wilkins, and the justice of the peace certified that “the Cable Company has paid all costs which have accrued,” etc. The fact that Wilkins made the affidavit and that the Cable Company paid the costs would be conjunctive circumstances seemingly indicating that Wilkins was an agent of some kind of the company, and that the company desired the issuance of the writ of certiorari. Was he* then, such an agent as could execute the bond in behalf of this corporation? We have already answered this question in New York Life Insurance Co. v. Rhodes, ante, 25 (60 S. E. 828), in. which we held that when a certiorari bond appears upon its face to-have been signed by one apparently authorized to act as an agent, authority to sign such bond is to be presumed, and this presumption continues until rebutted by proof. As pointed out in the Rhodes case, supra, the requirements as to those who may sign a certiorari bond in behalf of a corporation are not so strict as the provisions, of the code with reference to the execution of appeal bonds. It is not necessary, in the case of a corporation, that the certiorari bond be executed by the president or the agent managing the ease* or the attorney of record, as in cases of appeal. The bond to obtain the writ of certiorari may be executed by $ny authorized agent or any attorney of the corporation. Civil Code, §4639. Of course* it must appear that the agent was authorized to execute the bond; and it is upon this fact that the ruling in Southern Express Co. v. Wheeler, 72 Ga. 210, rests. Where an attorney in fact signs a bond, it should be accompanied by the power of attorney; because there is no presumption that an attorney in fact is more than a special agent for a particular purpose. In this case, however, we think that the trial judge properly held that the term “manager” implied general authority to act in behalf of the party who had lost the case in the justice’s court, and wljio had paid the costs with a view of taking the case up for review. As applied to a private corporation, the term “manager” indicates one charged with the general direction and control of its affairs; and when used by one thus entitled, in connection with the seal, the term imports authority to sign in behalf of the corporation. There is a presumption that a bond thus signed was signed by authority of the corporation, by- one authorized to sign. The bond is prima facie valid. Its validity can be questioned or its invalidity can be shown by proof. We adopt the ruling of our learned brother of the trial bench, “that the word ‘manager’ implies control, agency, -and authority presumptively sufficient to bind the company on a bond in a case to which there is no doubt that the company was an actual party to the case tried and brought up under the writ of certiorari.”

It is insisted, however, that while the foregoing would apply to the signature accompanied by the common seal of the corporation, the corporate seal was not used in this case. It must be conceded that under the decision in Solomon’s Lodge v. Montmollin, 58 Ga. 547, the seal of a corporation is prima facie evidence that it was affixed by proper authority; and therefore the position of counsel for the plaintiff in error must rest upon the proposition that only the corporate seal can be used in signing .a bond to obtain the writ of certiorari. We can not agree to this position, because the authorities are to the contrary, as already pointed out in New York Life Ins. Co. v. Rhodes, supra. It was held in one of our earliest cases, Johnston v. Crawley, 25 Ga. 327 (71 Am. D. 173), that “a scroll is made a seal by statute in this State, and there is no reason why it may not be adopted by a corporation here, either as a common seal or as a seal for. a special purpose.” It is code law. Political .Code, §5. The question as to whether one who purported to be an authorized agent of a petitioner in certiorari was or was not authorized so to act is determinable, prima facie, by the use of the corporate seal. Its use imports authority to sign, because the seal of the corporation itself is prima facie evidence that it was affixed by proper authority. Where the corporate seal is not affixed to the bond, and the power of attorney to sign is not attached thereto, the agency of the party purporting to sign the bond in behalf of the corporation is determinable largely from the designation attached by the signer and the use of the seal. Where a bond is signed under seal, in behalf of a corporation, by one whose official designation imports agency, there is also a presumption that there is an agency, for the reason that no one will be presumed to commit forgery. Evidence may be submitted (as was held in Ala. Midland Ry. Co. v. Stevens, 116 Ga. 790, 43 S. E. 46), to show that he who signed in behalf of the corporation was not fully authorized; and it may be shown that such a one had no authority at all; but in the absence of such evidence, it is to be presumed that he who signed the name of the corporation as its agent was either generally or specially authorized; and if a scroll be used instead of the common seal, presumptively the substitution of this seal was either specially authorized or within the scope of the power of the general agent. For these reasons the court did not err in overruling the motion to dismiss, made by the defendant in certiorari.

The plaintiff in error excepts to the judgment of the judge of the superior court in sustaining the certiorari and ordering the justice of the peace to reinstate the claim and to try the case upon its merits. The assignment of error is based rrpon the fact that a previous claim had been filed by the Cable Company and was dismissed. When the present case came on for trial, the plaintiff in error (plaintiff in fi. fa. in the justice’s court) insisted that the former dismissal of the claimant’s claim to the identical property constituted a bar to the interposition of another claim; and the justice sustained this contention. The'first claim was not heard upon its merits, nor was it withdrawn by the • claimant. It was dismissed on motion of the plaintiff in fi. fa., without any appearance on the part of the claimant. The dismissal of the first claim does not effect a res adjudicata, and is not good substance for a plea in bar to that effect. The plaintiff in fi. fa. could not, on account of tbe failure of the claimant to appear, take judgment by default (National Furniture Co. v. Edwards, 105 Ga. 240, 31 S. E. 161), and it does not appear from the record that the plaintiff in fi. fa. made out its ease and that the justice of the peace inadvertently or ignorantly entered a judgment dismissing the claim, when he should have rendered judgment in favor of the plaintiff in fi. fa. and finding the property subject. To the contrary, the plaintiff’s attorney moved the dismissal of the claim. Clearly there was no res ad judicata, and. the dismissal of the claim at the instance of the plaintiff in fi. fa. amounted to nothing more than consent on the part of the plaintiff in fi. fa. that the claimant might withdraw his claim. While, by statute, a claimant can, without the consent of the plaintiff in fi. fa., only withdraw his claim once, still a claim may be withdrawn' hy the consent of the plaintiff in fi. fa., or" it may be dismissed upon his motion, and in either event the claim may be renewed. Neither a withdrawal of the claim nor a dismissal of the claim for want of prosecution, however, is an adjudication of the issue upon its merits or constitutes any bar to the interposition of another claim. The claimant is not allowed of his own motion to withdraw this claim more than once; because the plaintiff is entitled to prosecute the case to verdict. If, however, the plaintiff in fi. fa. moves a dismissal of the claim or consents to its withdrawal by the claimant, he waives this right and takes the risk of the interposition of another claim.

It appears in this case that the fi. fa. obtained by the American Investment Company issued upon a judgment against one Charlie Brown; the piano was sold by the Cable Company to Hannah Brown, his wife, under a written conditional-sale contract, which was properly recorded. The Cable Company had a right to file the claim; and if the existence of the facts testified to upon the trial before the justice, antecedent to the dismissal of the claim upon the ground that it was res adjudicata, is not disproved, the Cable Company is entitled to prevail in the suit over the owner of a fi. fa. which was not even obtained against the vendee in the conditional-sale contract. There was, therefore, no error in sustaining the certiorari and ordering a trial in the justice’s court upon the merits of the case. Judgment affirmed.


author: Hill, C. J.

text:
    846.
    AUGUSTA RAILWAY & ELECTRIC CO. v. LYLE.
    In a suit to recover damages against a street-ear company, where the allegation of negligence is the negligent movement of a car of the defendant, causing a sudden, violent, and unusual jerk, which threw the plaintiff across the seat of the ear, it was erroneous to give in charge to the jury the following instruction.: “If, in reviewing the testimony, you are satisfied that the plaintiff was injured by a sudden, violent, and unusual jerk, and that he could not, by the exercise of ordinary care and diligence, have protected himself against the consequences of this negligent act, then he would be entitled to recover.” The error in this instruction is twofold: Eirst, that a recovery could be predicated on proof of a sudden, violent, and unusual jerk. To make a jerk an act of culpable negligence- it must have been unnecessaiy at the time and place where it occurred, as well as violent and unusual. Second, that the charge contained an assumption by the judge and an instruction to the jury that the act mentioned constituted negligence; and that “this negligent act” had been proved.
    Action for damages, from city court of Richmond county— Judge Eve. November, 1907.
    Argued January 21,
    Decided March 30, 1908.

      Boykin Wright, George T. Jackson, for plaintiff in error.

      Henry G. Boney, contra.
   Hill, C. J.

Lyle sued the Augusta Railway and Electric Company, to recover damages for personal injuries received by him while a passenger on one of the cars of the company. He recovered a verdict for $3,000, and the defendant made a motion for a new trial on various grounds, which .was overruled. The evidence in behalf of the plaintiff, supporting the allegations of his petition, can be briefly stated as follows: On February 3, 1906, between eleven and twelve o’clock at night, he got on a car while it was standing near a crossing of the tracks of the Georgia Railroad. He sat down at first on the third seat from the rear end of the car, but noticing a negro man sitting on the seat opposite him, and recalling the rule which required the company to reserve the rear seats for negroes, and inferring that the three rear seats were so reserved, he got up for the purpose of changing his seat to one nearer the front of the car. As he arose for that purpose, the car started off with a sudden, violent, and unusual jerk, and threw him across the seat. When he arose .to change his seat, he had on his overcoat and had his hands in his pockets. As a result of the fall across the seat he received severe personal injuries, which were fully described. The defendant company denied any negligence, but contended, that the ear started in the usual and ordinary way, without any sudden, violent, or unusual jerk; that it was passing over the tracks of the railroad company at the crossing, and that the plaintiff, at this time and while the car was passing over the tracks of the railroad, arose for the purpose of changing his seat, and, having his hands in his pockets, lost his balance, because of the usual and necessary jolting of the car in passing over the railroad tracks; that his fall was entirely the result of his own negligence. The conflict in the evidence was settled by the verdict of the jury in favor of the plaintiff, on the question of liability, and we can not say that there was no evidence in support of the verdict. For this reason we would not feel authorized to grant another trial, unless there occurred material and prejudicial errors of law on the part of the court.

The 8th ground of the motion for new trial alleges error in the following charge: “If, in reviewing the testimony, you are satisfied that the plaintiff was injured by a sudden, violent, and unusual jerk, and that he could not, by the exercise of ordinary care and diligence, have protected himself against the consequences of this negligent act, then he would be entitled to recover.” The objection to this charge is twofold. First, it does not state a correct proposition of law. Second, it is an expression of opinion by the court as to what acts would constitute negligence; and it was also an expression of ’opinion that the defendant had cdmmitted an act of negligence. We do not think the court correctly stated the law, in the first portion of this charge. It has been repeatedly held by the Supreme Court that it is not sufficient, as a basis of recovery because of negligence, to show a sudden, violent, and unusuai jerk of the car; that the proof should also show that the sudden, violent, and unusual jerk or motion of the car was unnecessary at the particular time and place. As -was said in Ball v. Mabry, 91 Ga. 784 (18 S. E. 65), it is material for the plaintiff to show that the jerk or jolt by which he was injured was both unusual and unnecessary; and it is material for the defendant to show that such jerk or jolt was usual and necessary. It can not be doubted that a jolt or jerk, although violent and unusual, might nevertheless, be necessary at the particular time and place of its occurrence. To illustrate: A street-car passing at the proper speed over, the track might be suddenly stopped by the motorman, to prevent running over a pedestrian about to come on the track, and a passenger might be thereby injured. The stop is both sudden and unusual, but it could not he said to have been unnecessary. No right of action would accrue to the injured passenger, because of the necessity of stopping at the time and place to prevent injuring or killing the pedestrian. In this case it was insisted by the defendant, that the jolts of the car in passing over the tracks of the railroad at the place where the accident occurred, although they might have been more violent than at other parts of the road, were, nevertheless, the usual and necessary incidents of passing over the tracks at this place, and that while it unquestionably would be incumbent upon the street-car company to establish the necessity of such jerks or jolts in passing over the tracks in this particular place, it had undertaken tó do so, and that this charge of the court, in excluding from consideration the element of'necessity, deprived the defendant of a material part of its defense; in other words, that this charge not only allowed, but instructed, the jury to draw the conclusion that a jerk or jolt that was sudden, violent, and unusual was negligence, although it might have been a necessary incident to the motion of the car in crossing the railroad tracks. .

The rule applicable is the same as that applied to noises caused by the running of trains. Liability arises from the injuries so caused only when the noises are both unusual and unnecessary. Southern Ry. Co. v. Flynt, 2 Ga. App. 162 (58 S. E. 374); Morgan v. Central Railroad, 77 Ga. 788. It¡ has been held, that in determining whether an irregular motion of a train or car was unusual and unnecessary, not only the character of the train or car, but also the place where such motion occurred, should be taken into consideration, — for instance, that a motion which might be considered violent and unusual on a straight track might be both usual and necessary in going around a curve, or in going from a main track to a switch track, or in passing over tracks. Ball v. Mabry, supra; Ayers v. Rochester Ry. Co., 156 N. Y. 104 (50 N. E. 960); Moser v. Street Ry. Co., (Ky.) 74 S. W. 1090, 1 St. Ry. Rep. 240. In a case decided by the Massachusetts Supreme Court, it was held that a passenger on a street-car, who was injured by being thrown to the ground by a lurch of the car in passing over the main track to a switch track, could not recover there.for, where there was no evidence that the injury was due to a .defect in the car or track, or that the speed was unusual or dangerous. Such motions of street-cars are of quite frequent occurrence, and are to be expected to a greater or less degree whenever the car passes from one track to another, and are of the class of usual and unavoidable incidents in the use of cars upon the streets. Byron v. Lynn & Boston R. Co., 177 Mass. 303 (58 N. E. 1015); Ilges v. St. Louis Trans. Co., 102 Mo. App. 529 (77 S. W. 93, 2 St. Ry. Rep. 586). We conclude that the correct rule of law on the point now under discussion is that the liability of the street-railway company would depend upon whether or not the motion •of the car at the place where the injury occurred was not only sudden, violent, and unusual, but was also unnecessary.

We think also that the charge was erroneous in that the judge undertook to enumerate certain acts of the defendant and to tell the jury that these acts would constitute negligence. “It is error for the court to charge the jury that certain enumerated facts, if proven, would constitute negligence. Negligence is a question of fact, of which the jury are to judge from the evidence, and not a question of law.” Montgomery & West Point R. Co. v. Boring, 51 Ga. 582, “It is error for a trial judge to instruct the jury that given facts would constitute negligence, when the facts are not such as are made by law to constitute negligence per se.” Portner Brewing Co. v. Cooper, 116 Ga. 171 (42 S. E. 408) ; Augusta Ry. Co. v. Weekly, 124 Ga. 384 (52 S. E. 444). Following these decisions and many others, this court announced, in the case of Atlanta & Birmingham Air-Line Ry. v. McManus, 1 Ga. App. 303 (58 S. E. 258), “It is erroneous for the judge, in his charge, to assume or to instruct the jury that certain things, not directly made so by law, are or are not negligent.” Analyzing the excerpt from the charge, it will be seen that the trial judge not only told the jury that a sudden, violent, and unusual jerk would constitute negligence, but relieved them from the exclusive burden of responsibility in determining the existence of negligence. The use of the language, “this negligent act” (alluding to the sudden, violent, and unusual jerk), by the trial judge, was plainly an expression of opinion, and left nothing, as to the character of this act, for the solution of the jury. It is true the judge in other portions of the charge properly left the question of negligence to be determined by the jury from the facts; but this, we think, did not render harmless the specific error contained in the instruction under criticism. Besides, the error noted was substantially repeated in other portions of the charge, which are specifically excepted to in the 10th, 12th and 13th grounds of the motion for new trial.

■ There are assignments of error made as to other portions of the charge, and we have considered them in connection with the charge as a whole. So considered, we do not think that they contain any material or prejudicial error. The judgment refusing to grant a new trial is reversed solely on account of the erroneous instructions above noted. Judgment reversed.


text:
    850.
    CLEMENT v. ORR et al.

    A suit to recover damages for the malicious use of legal process in suing out and levying a distress warrant can not be maintained without proof of malice and want of probable cause; and it is essential that the petition to recover damages in such case should allege that the distress-warrant proceedings had terminated in favor of the defendant therein before his action for damages was filed.
    Action for damages, from city court of Atlanta — Judge Beid. November 9, 1907.
    Argued January 22,
    Decided March 30, 1908.

      Edgar Latham, for plaintiff. G. B. Reynolds, for defendants.
   Hill, C. J.

Clement brought suit to recover damages from Orr and others, for malicious use of civil process. The allegations of his petition are, substantially, that he was a tenant of the defendant Orr, renting a house from him by the month, the rent payable in advance; that the defendant Thrower acted as agent for the defendant Orr, in renting the house to him; that before the rent was due, Thrower, as agent for Orr, had an employee in his office, the defendant "Whitten, to sue out a dispossessory warrant for the premises, and a distress warrant for the rent of the premises; and that these warrants were executed by the defendant Lancaster, a constable of the justice of the peace who issued the warrants. It is alleged that the warrants were executed .at 6 o’clock p. m., when the defendants knew that the plaintiff would be absent from home, and that the seizure thereunder was made bn certain personal property contained in the house, and the property was taken by the levying officer to the justice’s court from which the distress warrant issued; that the plaintiff’s wife and two small children were alone at the house at the time, and were greatly frightened by the seizure, and that the plaintiff himself (who was living in a populous part of the city of Atlanta) was greatly humiliated by the seizure and removal of his property. It is alleged that these acts were in furtherance of a conspiracy, into which all of the defendants had entered, to humiliate the plaintiff, and that this possessory warrant and’the distress warrant had both been instituted maliciously and without probable cause. Suit is brought for actual damages, being the amount of expenses incurred by the plaintiff in paying a lawyer to resist the civil proceedings and damage to his personal property by the seizure and removal thereof, — these two items alleged to be $50; also punitive and vindictive damages in the sum of $5,000. A general and a special demurrer were filed to the petition, and the court sustained the former and dismissed the petition; and on this judgment error is assigned.

The controlling question in the case is, whether the suit for damages is based on a malicious use of civil process, or a malicious abuse of civil process. If the suit was a malicious use of civil process, it is well settled that the plaintiff must allege three things: (1) that the suit against him was malicious; (3) that it was without probable cause; and (3) that it had terminated in his favor before the suit for damages was filed. If, however, the suit is for malicious abuse of civil process, these allegations are not necessary. Newell, in his work on Malicious Prosecution, gives the following distinction between the malicious use and the malicious abuse of legal process: “An abuse of legal process is where the party employs it for some unlawful object, not for the purpose which it is intended by law to effect; in other words, it is a perversion of it. For example, if a man is arrested, or his property seized, in order to extort money from him, even though it be to pay a just claim, other than that in suit, or to compel him to give up possession of a deed or anything of value not the legal object of the process, it is settled there is an action for such malicious abuse of process. It is not necessary to prove that the action in which the process issued has been determined, or to aver that it was sued out without probable cause. On the other hand, legal process, civil or criminal, may be maliciously used so as to give rise to a cause of action, where no object is contemplated to be* gained by it other than its proper effect and execution. As every man has a legal right to prosecute his claims in a court of law and justice, no matter by what motives of malice he may be actuated in doing so, it is necessary to aver and prove that he has acted not only maliciously but without reasonable or probable cause. It is clearly settled in this form of action that the proceeding in which it is claimed the process has been maliciously used must have been determined before any action 'for the injury lies. Newell on Malicious Prosecution, §7. This distinction was recognized by the Supreme Court in Mullins v. Matthews, 122 Ga. 289 (50 S. E. 101), and in cases cited in that decision. In that case the court holds that “it is a well-established rule that an action for damages for the malicious abuse of legal process may be maintained before the action in which such process was issued is terminated” (citing 19 Am. & Eng. Enc. Law (2d ed.), 632, and Montague v. Cummings, 119 Ga. 141, 45 S. E. 979), but that a “different rule applies in an action for malicious use of legal process.

. . In such case it is necessary to allege malice, want of probable cause, and that the action on which the process issued has been finally determined in favor of- the defendant therein.” In an action of the former kind the gravamen of the' action is the fraud, the abuse; and in the latter, the malice and the want of probable cause. Juchter v. Boehm, 67 Ga. 538.

The Supreme Court has held, in several cases, that an action to recover damages for suing out and levying an attachment, and for instituting proceedings to obtain and serving summons of garnishment could not be maintained without proof of malice and want of probable cause. Sledge v. McLaren, 29 Ga. 64; Wilcox v. McKenzie, 75 Ga. 73. Chief Justice Simmons, in Porter v. Johnson, 96 Ga. 148 (23 S. E. 124), uses this language: “So far as I know, no respectable court in this country has ever held that an action will lie against a person for having brought an action against another, unless he did so with malice and without probable cause.” “Actions for criminal prosecution and civil suits require substantially the same essentials.” Wilcox v. McKenzie, supra. In a suit to recover damages alleged to have been sustained in consequence of malicious use of process in a civil case, it is necessary to allege and prove want of probable cause and malice, and that the suit out of which the action for damages arises has been determined in favor of the defendant in that suit. Civil Code, §3850; Marable v. Mayer, 78 Ga. 710 (13 S. E. 429); Hyfield v. Bass Furnace Co., 89 Ga. 827 (15 S. E. 752); Fulton Grocery Co. v. Maddox, 111 Ga. 260 (36 S. E. 647). We think the allegations of the petition in the instant case constitute an action for the malicious use of legal process. The suing out of the distress warrant and the dispossessory warrant were the legal means provided for the collection of rent which was due, and the dispossession of the tenant holding over. It is not alleged that the 'officer executing the distress warrant seized any property other than that belonging to the defendant or tenant, or seized more than was necessary to make the debt distrained for; and, in the execution of the dispossessory warrant, no other than the tenant holding over was notified by the officer. The plaintiff, in his petition, seems to recognize that his suit was for the malicious use of legal process, for he alleges that the use of such process was malicious and without probable cause; but he fails to allege that distress-warrant proceedings had been terminated in his favor before this suit was brought. This -latter allegátion is absolutely essential, and the trial judge was right in sustaining the demurrer and dismissing the petition,

Judgment affirmed.


text:
    853.
    COOPER et al v. LOWERY.
    If a servant wlio is employed to do certain work for liis master employs another person to assist him, the master is liable for the negligence of the assistant only when the servant had authority, express or implied, to employ him, or when the act of employment is ratified by the master.
    Action for damages, from city court of Hall county — H. H. Dean, judge pro hac vice. October 19, 1907.
    Submitted January 22,
    Decided March 30, 1908.

      George K. Looper, B. P. Gaillard Jr., for plaintiffs in error.

      II. L. Patterson, contra.
   Hill, C. J.

The plaintiff brought this action to recover damages for personal injuries caused by the negligence of an alleged servant of the defendants. The controlling question presented by the record is, whether the person whose negligence caused the injury was a servant of the defendants. On this question there is no material conflict in the'evidence, which is briefly as follows: The defendants were the owners of a guano factory, and sold •and delivered their guano from the factory. They employed a servant to deliver guano to purchasers. This servant had no authority, express or implied, from the defendants to employ any one do assist him in such work. On the occasion when the plaintiff received the injuries complained of, the servant had employed a negro boy to assist him in delivering the guano at the factory, and dhis assistant, while in the act of loading a sack of guano on the wagon of the plaintiff, injured him by his negligence. The testimony is positive and uncontradicted that the servant of the defendants had no authority, either express or implied," to employ an assistant for this work, and that the employment of the assistant in question was without the knowledge or consent of the defendants, and the unauthorized act was in no wise ratified by them. The trial judge instructed .the jury on this subject as follows: "The master is liable for the negligence of a person whom the servant has procured to aid him in his work, where the negligent act resulting in the injury qomplained of occurred in the course of the work;’5 and this charge is assigned as error.

We think the charge incorrectly interpreted the law on this particular point. If a servant who is employed to perform certain work for his master procures another person to assist him in the work, the master is not liable for the negligence of the latter, except when the servant had authority from the master, express or implied, to employ the assistant, or when the employment of the assistant was subsequently ratified by the master. In the case of Haluptzok v. Great Northern R. Co., 55 Minn. 446 (56 N. W. 144, 26 L. R. A. 739), the court says: "Under the doctrine pf respondeat superior, a master, however careful in the selection of his servant, is responsible to strangers for their negligence committed in the course of their employment. The doctrine is at best somewhat severe, and," if a man is to be held liable for the acts of his servants, he certainly should have the exclusive right to determine who they shall be. Hence, we think, in every well-con.sidered case where a person has been held liable, under the doctrine referred to, for the negligence of another, that other was engaged in this service either by the defendant personally, or by others by his authority, express or implied.” In other words, to render one person liable for the negligence of another, the relation of master and servant, or principal and agent, must exist between - them. And unless this relation exists, the law will not impute to one person the negligent act of another. The case of Mangum v. Foley, 33 Mo. App. 250, was an action for damages for the killing of the plaintiff’s child, where it appeared that the defendant’s teamster engaged a stranger, without the knowledge or consent of the defendant, to drive the team temporarily, and the injury occurred while the stranger was so employed, and it was held by the court that “there was no cause of action against the defendant/ and a demurrer to the evidence should have been sustained.” If the servant was allowed by the master any discretion in connection with his employment, or if the servant’s employment was supervisory in character, and it was usual and customary in such, employment for other servants to be employed by him, the master might be liable for any damage caused by the negligence of such sub-servants. But where, as in this case, the fact is clear that .there was no such discretion, and that the servant of the master was employed for a specific purpose, and the servant, on his own responsibility, without authority, express or implied, from the master, and without any ratification of his act, hired a person temporarily to assist him in loading the guano on the wagon, and he himself, and not the master, paid the assistant, there is neither reason nor justice in holding the master liable for the negligent conduct of the assistant; and a verdict against the master, under these facts, would be unauthorized, and a new trial should have been granted.

The other assignments of error are immaterial, in view of this ruling. * Judgment reversed.


text:
    861.
    Baisden & Company v. Holmes-Hartsfield Company.
   Hill, C. J.

A laborer’s lien has priority of a mortgage given to secure the payment of purchase-money; and this is true even though the mortgage has been foreclosed and levy of the mortgage fi. fa. is made before the laborer’s lien is foreclosed. Civil Code, §§2792, 2793; Bradley v. Cassels, 117 Ga. 517 (43 S. E. 857) ; Georgia Loan Co. v. Dunlop, 108 Ga. 218 (33 S. E. 882).

Money rule, from city court of Moultrie — E. L. Shipp, judge pro hac vice. November 12, 1907.

Submitted February 3,

Decided March 30, 1908.

The questions in this case arise on a rule to distribute money, upon the following agreed statement of facts: “On July 18, 1907, the Holmes-Hartsfield Company, a firm engaged in the furnishing of sawmills with provisions and other things necessary to carry on the work of sawmills, foreclosed their lien for supplies, as required by law, which lien execution was, on the 18th day of July, 1907, levied upon the following property [describing a certain sawmill, etc.], which proceedings were against Broome & Sellers. After-wards, to wit, on the 2d day of July, 1907, Baisden & Co. procured a purchase-money attachment against said property, which attachment was, on the 26th day of July,' 1907, . . executed by seizing, attaching, and levying upon said property; which proceedings were against Broome & Sellers. Both of said levies . . were by the sheriff of the city court of Moultrie. After both of said levies had been made by said sheriff, he advertised the same, as required by law, for sale under the purchase-money attachment of Baisden <& Co. Said property was, on the first Tuesday in October, 1907, sold by said sheriff to the highest bidder, for cash, under and by virtue of said purchase-money attachment, for the sum of $275.

2. A materialman’s lien is superior to the lien of a prior mortgage for purchase-money, where the material has been furnished without actual notice of the mortgage. Civil Code, §2804, par. 4; Tanner v. Bell, 61 Ga. 585.

3. Property seized under execution is in custody of the law, and can not be levied upon by virtue of other process. Any person having a lien on the property, or interested in the proceeds thereof, may come into the court having possession of the property or its proceeds and assert his rights. Mulherin v. Porter, 1 Ga. App. 153 (58 S. E. 60) ; Fulghum v. Williams Co. 114 Ga. 646 (40 S. E. 695, 1 L. R. A. (N. S.) 1055, 88 Am. St. R. 48); Freeman on Executions, § 268.

4. Where property has been seized and sold by the sheriff under execution, and, subsequently to the seizure, a laborer or materialman has foreclosed his lien on the property seized, and has been prevented from having a levy made, because the property was in custodia legis, he does not thereby lose his lien, but can place it in the hands of the sheriff, with notice to hold up the money arising from the sale of this property, until distributed by direction of the court.

5. Under the agreed statement of facts, the money in the hands of the sheriff, arising from the sale of the property of the defendants in fi. fa., was distributed by the court according to legal priorities.

Judgment affirmed.

“On the 16th day of November, 1906, in the city court of Moultrie, J. H. Drake obtained a judgment upon a suit brought upon an open account, against R. J. Broome, one of the defendants in said lien foreclosure and said attachment, upon which judgment execution was issued on the 28th day of November, 1906, for the total sum of $61.25, including costs, which execution was entered on the execution docket of the city court of Moultrie, . . November 30, 1906, and . . also entered, on the same date, on the general execution docket of the superior court of Colquitt county. After said lien execution of the Holmes-Hartsfield Company and said purchase-money attachment of Baisden & Co. had been levied upon the property described, to wit, on the 10th day of September, 1907, A. W. Sellers, W. T. Tucker, John Eeagan, W. D. Thompson, N. A. Barksdale, and I. N. Barksdale, foreclosed their laborers’ liens, against the firm of Broome & Sellers, which executions were never levied upon any of the property, but were, on the 1st day of October, 1907, placed in said sheriff’s hands, with instructions to hold up the money derived from the sale of said property, for the purpose of paying said laborers’ liens. Afterwards, .to wit, on the 28th day of September, 1907, William Pope foreclosed his laborer’s lien against the said Broome & Sellers, and, on the 1st day of October, 1907, placed said lien foreclosure in said sheriff’s hands, with' instructions to hold up thé money derived from the sale of said property, for the payment of said lien foreclosure. The said liens were for the following sums [stated]. The said A. W. Sellers, who foreclosed said laborer’s lien as above stated, is a member of the defendant firm, Broome & Sellers; he having foreclosed said lien against himself and his partner R. J. Broome. Said sheriff has possession of said sum of money, to wit, $275. He refuses to apply said money to the payment of either of said lien executions or said purchase-money attachment, except on an order of the court directing him to do so. At the time Baisden & Co. sold said property to Broome & Sellers, the defendants gave a mortgage thereon for the purchase-money to plaintiffs, which mortgage was duly recorded and foreclosed, and execution thereon issued, on the 23d day of July, 1907; but said mortgage execution was never levied, but was placed in the hands of the same sheriff.”

The judgment of the court was “that the money in the hands of the sheriff be paid out as follows: (1) To the laborers, as set out in the agreed statement of facts, together with the principal, interest, and costs due said laborers as therein specified, with the exception that A. W. Sellers gets nothing. ' (2) It is then ordered that the claim of Holmes-Hartsfield Company be paid, principal, interest, and costs. (3) It is then ordered that the claim of Baisden & Co. be paid, principal, interest, and costs. (4) The claim of J. H. Drake is declared to be inferior to the above-stated claims* The liens rank as above -set forth, to wit: laborers’ liens coming-first; Holmes-Hartsfield Company coming second; Baisden & Co. coming third, and Drake fourth and last.”

Baisden & Co. excepted, on the following grounds: (1) The laborer’s-lien executions are not in’ law superior to the purchase-money attachment lien. (2) The judgment is contrary to law. (3) The judgment is contrary to evidence and without evidence to support it. (4) Said executions were never levied as required by section 2794 of the code. (5) Said executions were never levied as required by section 2816, par. 4, of the code. (6) Laborer’s-lien executions do not become fixed and binding on property until levied. (7) The purchase-money attachment was levied before the laborers’ liens were foreclosed. (8) The laborer’s-lien executions, or the materialmen’s lien, are not superior to the mortgage execution, because the mortgage was for purchase-money and was duly recorded. (9) The mortgage was foreclosed and the execution placed in the shferifE’s hands before foreclosure of any of the said liens. (10) A purchase-money lien is superior, in law,, to either a laborer’s or a materialman’s lien. (11) A purchase-money attachment, when levied, becomes a fixed lien upon the property levied upon and is superior to any materialman’s or laborer’s lien. (12) Purchase-money mortgage lien, duly recorded, is superior to any materialman’s or laborer’s lien, especially when the mortgage is foreclosed before the other liens are foreclosed.

T. H. Parker, for plaintiff in error.

A. B. Buxton, B. L: Bryan, James Humphreys, J. D. McKenzie, contra.


text:
    864.
    GEORGIA, FLORIDA & ALABAMA RAILWAY COMPANY v. SIZER & COMPANY.
    1. It Ayas error to direct a verdict against the traverse filed to the answer of the judge of the city court, the subject of the traverse being material to the issues involved in the certiorari, and there being a direct issue of fact as to this, Avhich should have been submitted to the jury.
    2. Any disposition upon the merits of a certiorari is premature until the traverse has Ipeen properly disposed of; and a judgment upon the certiorari, in advance of a legal disposition of the traverse, is nugatory and void.
    Certiorari, from Decatur superior court — Judge Spence. November 12, 1907.
    Submitted February 3,
    Decided March 30, 1908.

      Pottle & Glessner, Donalson & Donalson, for plaintiff in error. T. S. Hawes, contra.
   Russell, J.

The Georgia, Florida & Alabama Railway Company sued out a distress warrant,against Cheeves & Sons for the rental of a side-track; and the warrant Avas levied upon certain ears of lumber, at that time in possession of the railway company itself. Sizer & Company filed a claim to the lumber, and, the case being tried in the city court of Bainbridge by the court without a jury, the court found in favor of the claimant. The railway company filed a certiorari; the judge of the city court filed an answer; the company filed a traverse to the answer of the judge. Upon the trial of the traverse, in the superior court, the court directed a verdict against the first ground of the traverse, and the jury found against the second ground. After the traverse was thus disposed of, the judge overruled the certiorari. Exception is taken Oto the direction of the verdict, and to the judgment overruling .the certiorari.

We think the court erred in directing the jury to find against the first ground of the traverse. A pointed issue of fact was presented, which it was the province of the jury, and not of the judge, to determine. Quite a number of witnesses testified’ upon the subject, and it seems to us that the preponderance of the evidence, as to the real substantial matter in dispute, was largely in favor of the traverse. .Counsel for the defendant in error insists, however, that the court was authorized to direct a verdict, because it was not proved, as alleged in the traverse, that the lumber was in Bainbridge before the agent of the company at Damascus received shipping instructions tending to show that the lumber was the property of the claimant. This, no doubt, was the view entertained by the trial judge. Every traverse to an answer to a' certiorari must be substantially proved; and if there had been a failure in this'regard, the court would have been authorized to direct a verdict. The material point involved, however, in the first ground of the traverse was not whether the lumber had reached Bainbridge before the agent at Damascus received notification of Sizer & Company’s claim, but whether it had left the station at Damascus and had been taken into possession by the company, not as a carrier, but as a bailee. The evidence in support of the first ground of the traverse and in favor of -the plaintiff upon this ground was ample. The issue should have been submitted to the jury, and failure to so submit it vitiated all subsequent proceedings.

It is insisted, however, that the plaintiff in error was not hurt by this ruling, even if it were erroneous, because, upon the subsequent hearing of the certiorari, the credibility of the witnesses, in case of conflict, was for the judge; and the jury having found against the second ground of the traverse, there would have been, therefore (even if the jury had found in favor .of the first ground of the traverse), a conflict in the testimony, and the judge would have had the right to give the preference to such testimony as he saw proper to prefer. Admitting this to be true, the erroneous direction of the verdict against the first ground of the traverse prevented the judge from exercising his discretion in the matter. Of course there can be no presumption one way or the other as to which witnesses the judge would have believed in preference to others, if the jury had found in favor of the first ground of the traverse and found, as they did, against the second ground. Any disposition of the certiorari, until the traverse has been properly disposed of, is premature; and before the traverse is legally disposed of, any disposition of the certiorari is nugatory and of no effect. Even if there were enough in the record to uphold the judgment dismissing the certiorari and affirming the judgment of the city court, that judgment has never properly been reviewed. The case was not in a condition to be finally dealt with at the time that the judge of the superior court pronounced his judgment of affirmance. Phillips v. Atlanta, 78 Ga. 775 (3 S. E. 431). As said by Chief Justice Bleckley, in the Phillips case, supra, and in dealing with the subject which is now before .us: “It is a mistake to attempt to reach the end of controversy in any way except the way prescribed by law. The art of administering justice, if an art at all, is obliged to be important. It' has been practiced for ages, and is. one of the institutes of all civilized countries. To let go form and regularity is to confess before the world that the profession of law is a needless profession. The essential difference between courts of law and other instrumentalities for administering justice is, that courts, aided by lawyers, know how to do it; other people do-not. When the truth of a magistrate’s return is traversed, the first business in order is to dispose of the traverse. That being done, you are ready for the main work.” The traverse was either material or immaterial. If it was immaterial, it should have been stricken by the court. The court very properly did not strike it, for it presented a material question in the case. The issue raised was'whether or not the agent of the railroad company at Damascus, received the shipping instructions before or after the lumber -left Damascus. The claimants contend that there had been a sale, of the lumber to them before the levy of the distress warrant. As-there could be no sale of personal property without delivery, the claimants were compelled to rely upon showing delivery to the-railroad as a common carrier, and attempted to do so. If the sale by Cheeves to Sizer & Company was not completed by delivery, and if the lumber, at the time of the levy of the distress warrant, was in the hands of the railway company merely as a bailee or a depository for hire, the property was subject to the distress warrant of the plaintiff in error. Cheeves & Company had control of the shipment as long as anything remained toube done which was necessary to be done before its acceptance by the carrier, as such, for shipment; and the fact that the lumber was in possession of the plaintiff itself, as bailee, would • not prevent the bailee from subjecting it to a debt due it.

The vital question in the case is, whether the relationship of bailee had ceased and that of carrier had begun at the time the distress warrant was levied. Any evidence tending to throw light upon that question was material. The relation of shipper and carrier does not .begin between the owner of goods and a railway company, though the former may have delivered the goods to the latter, if, after such delivery, anything required, either by law or the contract, remains to be done by the shipper; and in such case the rights and liability of the company are those only of a warehouseman. “Where goods to be shipped are situated upon a spur-track of a railway company, and., the owner has no track scales, thus rendering it necessary to move the loaded ear to the company’s depot for the purpose of weighing the same, so as to ascertain the proper amount of freight charges, the delivery of such cars will be treated as having been made to such company at such depot.” Dixon v. Central Ry. Co., 110 Ga. 174 (35 S. E. 369).

If the testimony for the plaintiff in this case be believed (in case the ground of traverse to the answer with reference to the testimony of Mr. Cannon is sustained), the circumstances very strongly tend to prove that the car was in Bainbridge and that the distress warrant had been levied at the time that the agent of the railway company at Damascus received his first instructions as to the shipment of the lumber; and the evidence is undisputed that this was a prepaid shipment which had to be weighed at Bainbridge before the amount of freight could be determined or a bill of lading issued. We express no opinion, however, upon this portion of the case, because the comparative weight of the evidence is to be determined by the judge of the superior court after the issue raised by the traverse has been properly passed upon by a jury. Judgment reversed.

Powell, J., disqualified.


text:
    909.
    Marks v. Smith, Governor.
   Hill, C. J.

I. Where an indictment, with the bond given' thereon, has been regularly transferred by the superior court to a city court having jurisdiction of the offense charged in the indictment, the jurisdiction of the former ceases, and the jurisdiction of the latter attaches. The latter court has jurisdiction of all proceedings in the case subsequent to the transfer, including the forfeiture of the bond. Sureties in bonds taken in misdemeanor cases are chargeable with knowledge of the law which permits the transfer of such eases by the superior court to the city court for trial.

2. An amendment of a rule nisi issued on the forfeiture of a bond in a criminal case, changing the recital of the date of the execution of the bond, so as to make such recital of the date correspond to the true date of the bond, did not add a new and distinct cause of action, and was properly allowed.

Forfeiture of recognizance, from city court of Monticello— Judge Thurman. November 35, 1907.

Submitted February 17,

Decided March 30, 1908.

A. Y. Clement, for'plaintiff in error.

3. “An indictment which omits to charge that the failure of the accused to perform his contract of labor, or to repay advances made to him, was without goQd and sufficient cause is fatally defective.” A bail bond based on such defective indictment is void, and the surety thereon can set up such defect as a release, in answer to the scire facias issued on the forfeiture of the bond. Mason v. Terrell, 3 Ga. App. 348 (59 S. E. 4) ; Candler v. Kirksey, 113 Ga. 309 (38 S. E. 825, 84 Am. St. R. 247), and cit.

4. A presiding judge who is disqualified to try a criminal ease is also disqualified to forfeit a bond in such ease, or to grant a rule nisi on the forfeiture; and a judgment absolute based thereon is illegal, and should be set aside upon direct attack for that purpose.

Judgment reversed.


text:
    950.
    Farkas v. Brown.
   Russell, J.

1. In a case where there is direct conflict in the evidence as to the only material issue involved, it is not error to instruct the jury that a witness may be impeached by disproving the facts testified to by him. And though, in strict propriety, the court’s instructions upon the subject of impeachment should be limited to the method appropriate to the evidence adduced, still, in such a case, the mere enumeration, in the charge, of the other modes of impeachment provided by law does not require a new trial, where no reason appears why the complaining party could have been injured thereby. Especially is a new trial not demanded for the mere statement of the several modes of impeachment, when the instructions upon the subject of the credi'bility of the witnesses generally, and of the right of the jury to determine for themselves in whose favor is the preponderance of the evidence, are clear, pertinent, legal, and impartial.

2. The assignments of error complaining that the contentions of the defendant were given undue force and prominence are not sustained by the record. The contentions of the plaintiff were as fully and fairly presented as those of the defendant. The mention by the judge (in connection with his rehearsal of the plaintiff’s positive statement of his contention) of one of the reasons assigned by the plaintiff for knowing that he was correct, in his main statement, was not violative of §4334 of the Civil Code, as against the plaintiff; nor could it have tended to withdraw from the jury the positive statement of the plaintiff that he knew that the defendant had not made the payments which he claimed to have made. The reason only added corroborative force to the statement of the witness.

Affidavit of illegality, from city court of Sylvester — Judge Park. December 7, 1907.

Argued February 18,

Decided March 30, 1908.

Mark Tison, J. H. Tipton, for plaintiff.

Claude Payton, for defendant.

3. A trial judge should refer to the evidence only so far as is necessary to present the leading issues, and should omit reference to the minor details of the testimony. But where the error is favorable to the plaintiff in error, and when such error can affect injuriously only the opposite party, such plaintiff in error will not be heard to complain thereof. “One can not complain of that which has not hurt.”

4. The evidence authorized the verdict, and there was no error ih refusing a new trial. Judgment affirmed.