text:
    842.
    GEORGIA, FLORIDA AND ALABAMA RAILWAY COMPANY v. SASSER.
    1. If the judge of a city court is disqualified, any other city-court judge may preside in his stead.
    2. In applications for continuance on the ground of surprise occasioned by an amendment made by the opposite party to his pleadings, the moving party or his counsel should state how and wherein he is less prepared to go on with the trial. Continuances on this ground are addressed to the sound legal discretion of the trial judge.
    3. Where, in a suit by or in right of a railway employee against the company for personal injuries received through the negligence of fellow-servants, the defendant sets up that the employee was at fault in that he was in disobedience of the rules of the company and also of the instructions of his superior officer, and to sustain this defense the rules and instructions are put in evidence, it is the duty of the jury to compare the conduct of the employee with the rules and instructions, and, if it appears that a violation of either the rules or the instructions, properly interpreted, was a material contributing cause of the injury, they should find for the defendant. However, rules or instructions which are ambiguous, or which, by reason of their generality of statement, admit of more than one interpretation in practical application to a given state of facts, are to be construed most strongly against the company, and in favor of the employee’s blamelessness.
    4. The charge of the trial judge to the jury in the present case, on the method of construing and applying the rules of the company, was not erroneous.
    5. Where it is sought to impeach a witness by proof of unsworn state-merits contradictory to his testimony given on thé trial, foundation for the impeachment must first be laid by directing the attention of the witness to the alleged contradictory statements, with the particularity prescribed by the Civil Code, §5292. The inaccessibility of the witness at the time it is sought to lay this foundation does not justify a departure from the rule.
    6. In the light of the state of the pleadings and the evidence, the failure of the judge to instruct the jury that if the deceased, by the exercise of ordinary care, could have avoided the effects of the defendant’s negligence, the defendant would not be liable, was not error.
    7. Under the statutes of the State of Florida, “Where the widow sues for damages for the death of her husband by the wrongful act of another, in estimating her pecuniary loss the jury may properly take into consideration her loss of the comfort, protection, and society of the husband, in the light of all the evidence in the ease relating to the character, habits, and conduct of the husband as husband, and to the marital relations between the parties at the time of and prior to his death; and they may also consider his services in assisting her in the care of the family, if any; but the widow is not entitled to recover for her mental anxiety or distress over the death of her husband, nor for his mental or physical suffering from the injury. She is also entitled to recover reasonable compensation for tlie loss of support which her husband was legally bound to give her, based upon his probable future earnings and other acquisitions, and the station or condition in society which he would probably have occupied, according to his past history in that respect, and his reasonable expectations in the future; his earnings and acquisitions to be estimated upon the basis of deceased’s age, health, business capacity, habits, experience, 'energy, and his present and future prospects for business success at the time of his death, — all these elements to be based upon the probable joint lives of the widow and husband. She is also entitled to compensation for loss of whatever she might reasonably have expected to receive in the way of dower or legacies from her husband’s estate, in case her life expectancy be greater than his. The sum total of all these elements to be reduced to a money value, and its present worth to be given as damages. Within these limits the jury exercises a reasonable discretion as to the amount to be awarded, based upon the facts in evidence, and the knowledge and experience possessed by them in relation to matters of common knowledge and information.”

      (a) The foregoing being the construction given the Florida statute by the Supreme Court of that State, it will be followed by the coui-ts of this State.
    (b) Where a statute of a sister State is pleaded and proved, the courts of this State will follow the construction adopted by the courts of that State, although no proof is made by the party that such a construction has been announced by those courts.
    8. The method in which one party conducts his case in court is matter of legitimate comment by the opposing counsel in argument to the jury.
    9. The judge has the discretion of allowing counsel to ask leading questions of his own witness.
    10. The method of reducing expectant future damages to a present equivalent cash sum should be in accordance with the rule of the forum in which the damages are being estimated and assessed, even though the cause of action be based on a tort committed in another State.
    11. No error of law appears. The verdict is large, but not excessive. It is warranted by the evidence.
    Action for damages, from city court of Bainbridge — Judge Shipp presiding. October 26, 1907.
    Argued January 21,
    Decided April 20, 1908.
    Rehearing denied May 1, 1908.
    Mrs. Sasser sued the railway company for the wrongful death of her husband, who was an employee. The plaintiff’s case rested on these facts, which in the light of the verdict we must take to be Jrue: The deceased was a flagman on a freight-train, which on the day he met his death was proceeding south bound between Bainbridge, Georgia, and Tallahassee, Florida. At Havana, Florida, this train was overtaken by a passenger-train going in the same direction. Tbe freight-train contained about twenty cars, and was larger than any of the side-tracks at the station; it was therefore necessary, in order to let the passenger-train through, that the freight-train should go down 'the main line to a point below the southern switch, that the passenger-train should follow till it too had passed the switch and then back into the side-track, and, after this was done, that the freight-train should back up the main line till the way was clear. As the freight-train was thus backing northward (the engine being at the south end and the caboose at the north end), the deceased was standing inside the caboose, at a door cut in the rear end of it, watching the track in the direction in which the cars were being backed. Suddenly, violently, and unnecessarily, without signal or warning, the engineer threw on the air-brakes in full application; the resulting sudden stoppage and jerk of the train hurled the deceased headlong from the caboose to the track, and the cars ran upon him and killed him, — a casualty strikingly similar to that under review in the case of A. & B. AirLine By. v. McManus, 1 Ga. App. 302 (58 S. E. 258). The plaintiff pleaded and proved a statute of the State in which the homicide occurred — Florida, entitling the widow to sue and to recover “such damages as [she] may have sustained by reason of the death of the party killed;” also §3150 of the General Statutes of that State, substantially in the language of §2323 of the Civil Code of this State (indeed an adoption of the Georgia law,— see F. C. & P. Ey. Co. v. Mooney, 40 Fla. 17, 24 So. 148), abolishing the defense of fellow-service in cases of railway employments. The defendant, in addition to denying that the application of the air-brakes was violent and unusual, set up that the deceased met his death through his own carelessness, that he was not where he ought to have been, was not at his post of duty, and was in a dangerous position when he easily .could and prudently should have been in a place of safety. The jury found for the plaintiff $10,000. The defendant moved for a new trial, and to the refusal of it brings error. Exceptions pendente lite were preserved to certain rulings, and error is assigned upon them. The further facts necessary to an understanding of the points decided will appear from the opinion.

      Donalson &' Donalson, Pottle & Glessner, F. T. Meyers, for plaintiff in error. Bussell & Hawes, contra.
   Powell, J.

(After stating the foregoing facts).

Judge Shipp of the city court of Moultrie presided at the trial in lieu of Judge Harrell of the city court of Bainbridge, the latter being disqualified. This was under the authority of the act of December 21, 1899 (Acts 1899, p. 48), which confers upon the judge of every constitutional city court jurisdiction to preside in another city court when the judge of the latter court is disqualified. The defendant made the point that this act is unconstitutional, and that the trial was therefore a nullity, for the lack of a legal judge. This point involved a constitutional question, and, as it stood at the threshold of the case, we certified it to the Supreme Court. That court has filed its instructions holding that the act is constitutional.

At the opening of the trial the plaintiff offered a slight amendment to the petition, for the purpose of avoiding the effect of certain special demurrers which had been filed. The court allowed the amendment. One of the attorneys for the defendant thereupon stated that he was surprised, and moved a continuance of the case. The judge stated that the court would pass the case till a later day during the term; this postponement the defendant declined. The court asked counsel to state specifically wherein he was surprised; but counsel chose to stand upon his previous general statement that he was surprised. “When any amendment shall be made to the pleadings or other proceedings in the cause, if the opposite party will make oath, or his counsel state in his place, that he is surprised by such amendment, and that he is less prepared for trial, and how, than he would have been if such amendment had not been made, and that such surprise is not claimed for the purpose of delay, the case may be continued in the discretion of the judge, and charged to the amending party.” Civil Code, §5128. From a perusal of the terms of the statute just quoted, it is palpable that there was no error in refusing a, continuance under the circumstances. Indeed, after examining the amendment, we are satisfied that the surprise expressed was of that purely technical nature that does not admit of investigation under the probing of “how and why.”

The defendant sa3s that, irrespective of its negligence, the plaintiff should not have recovered, because the deceased was not without fault. The Florida law on the subject of injuries to railway employees through the negligence of fellow-servants is the same as ours, — the injured servant must have been without fault, in order that he may recover; and the widow suing for his'death has no higher rights in this respect than he would have had if he had survived the injury. Duval v. Hunt, 35 Fla. 85 (15 So. 876); F. C. & P. R. Co. v. Mooney, 40 Fla. 17, 45 Fla. 286 (24 So. 148, 33 So. 1010, 110 Am. St. R. 73); Morris v. F. C. & P. R. Co., 43 Fla. 10 (29 So. 541); Atlantic Coast Line R. Co. v. Ryland, 50 Fla. 190 (40 So. 24). It is contended that Sasser was out of his place of duty and was in disobedience to his superior officer, the conductor in charge of the train. As to this, it seems that when the freight-train was about to move down the main line to the southward, the conductor told Sasser to go back a sufficient distance to stop the approaching passenger-train and to inform the engineer thereon that the freight-train was on the main line and that he would have to back into the side-track; also to remain at the rear of the freight-train to protect the same while it was being backed past the other train, a sufficient distance to insure full protection. He went back and flagged the passenger-train, but, instead of staying back there, as the conductor says he intended he should, rode upon the pilot of that engine down to where the freight-train was, or rather to where the passenger-train left the main line for the side-track. “After he came in on engine No. 1” (the passenger engine); swears the conductor, “I instructed him to go back with the train [the freight-train, obviously] and to see that nothing was on the track — any obstructions or persons' — • and to remain there until called in.” Being told this, Sasser walked from the conductor, waited for the caboose to come up, and got up inside it. It appears that he then went to the back of the caboose, and was standing in the door, when the application of the brakes caused him to be thrown out and killed. The company contends, and the conductor swears, that if Sasser had obeyed either of these instructions — the first in which he was told to go back and flag the passenger engine and to remain where he could protect the freight-train, or the subsequent direction on which he was told to go back with the train and to see that nothing was on the track — he would riot have been hurt. If these instructions were ambiguous or equivocal, it was the right, if not the duty, of the jury to give the deceased the benefit of that construction which was most favorable to him. W. & A. R. Co. v. Bussey, 95 Ga. 585, 592 (23 S. E. 207). As to the first instruction, it seems that Sasser obeyed it to the extent of going back a sufficient distance to flag the passenger-train. We must confess our inability to see how the language used is reasonably capable of the further meaning insisted on, that he was to remain up the track at the point where he met the passenger engine, until called in by signals from his own train; the necessity for his presence at that place was over, and, when he was riding on the pilot of engine No. 1, it .seems that he was in position to insure his train the full protection commanded of him. The conductor then told him to go back with the freight-train and to keep a watchout for persons and obstructions on the track in the direction in which the train was backing. Obviously this meant that he should go back on the train, and not that’ he should walk or run back in advance of it, as the company contends; for, according to the proof, the train was moving faster than an ordinary man could have run. Especially, in the light of a rule of the company to which we shall presently refer, it meant that he should go to the rear of the train and keep a watch-out from that point.

Hules of the company relating to the duties of flagmen were in evidence, as follows: “317. Flagmen will report to and receive instructions from the master of transit. When on duty they must obey the orders of the conductor. When in j'ards they must obey the orders of yard-master or station agent.” “318. It is their especial duty to protect the rear of their trains in strict accordance with the rules, and they must allow nothing to interfere with the prompt and efficient discharge of this duty.” “319. They must obey the signal from the engineman prescribed by the rules, blit must never wait for such signal or for orders from the conductor when their trains need protection.” “329. Flagmen of freight-trains must never leave the rear of their trains except to protect them, without permission from the conductor and the substitution of a competent man in their place.” Also the following general- rule governing the movement of trains was in evidence: “When cars are pushed by an engine (except when shifting and making up trains in yards) a flagman must take a conspicuous position on the front of the leading car, and signal the engineman in case.of need.”

. It is said by tbe defendant that this last rule required that the deceased should have been on top of the caboose, which at that time was the leading car, and not inside it. The language of the rule does not necessarily require this meaning, even if such a construction is at all reasonable. Rules which are ambiguous, or which, by reason of their generality, admit of more than one interpretation in practical application to a given state of facts, are to be construed most strongly against the master by whom they were promulgated.

In instructing the jury on the subject of rules promulgated by the master for the guidance of the servant, the court used the following language, to which exception is taken: “In considering the rules of the company which have been introduced in evidence, you are instructed that such rules are to be strictly construed against the company, and will not be held to enjoin upon an employee a particular duty with respect- to a particular subject, unless such duty be comprehended within the clear and obvious meaning of the rule itself. The violation of a rule by an employee will not forfeit his right to recover, unless there has been a negligent violation of the rule, according to its plain and obvious meaning, nor unless such violation of the rules has been a contributing cause for his death.” The specific objection is that in the use of the word “obvious” the court stated the law “too strongly” against the defendant. “Obvious” is a pretty strong-sounding word. Its chief juridic employment, so far as my observation goes, is by judges of courts of review, who generally pronounce obvious those propositions (evolved perhaps with many concealed misgivings) which they are able to support with hut sparse.array of precedent and which they are unwilling to put forth as an original dictum without the supporting influence of some strong, impressive, faith-bearing word — for a proposition weak in substance is oft aided in appearance by the strength' of sonaney, and “obvious” is a sonant word. However, this word is not absolutely interdicted to the trial judges; and in proper cases they may use it cautiously, if the facts are sufficient to justify it. The instruction quoted above, including the obnoxious word excepted to, is taken almost verbatim from the opinion of the Supreme Court in the ease of Western & Atlantic R. Co. v. Bussey, supra.

A female non-resident witness was examined by the plain-till and excused. Later during the trial the defendant offered to prove by another witness that after she left the court-house she .made a statement contradictory of a part of her testimony. Objection was made that the foundation for an impeachment had not been laid. The defendant sought to recall the witness, to lay the foundation, but she had gone. The court thereupon refused to allow proof of the contradictory statement. Impeachment of a witness by contradictory unsworn statements made out of court must be preceded by the foundation prescribed by the statute. Civil Code, §5292. The inaccessibility of the witness does not justify a departure from the rule. Bessman v. Girardey, 66 Ga. 18; Raleigh R. Co. v. Bradshaw, 113 Ga. 862, 866 (39 S. E. 555), and cit.

One of the assignments of error complains that the judge failed to charge the jury that if the deceased, by the exercise of ordinary care, could have avoided the consequences of the defendant’s negligence, 'the plaintiff would not he entitled to recover. There was no written request to give this principle in charge, nor is the defense specifically asserted in the answer. The judge did charge that the plaintiff had the burden of showing that he was free from, fault and that no negligence on his part contributed to the injuryr. This being a suit; in the right of an employee against the master and the above-stated principles having been charged, and neither the pleadings nor the evidence making any express issue on the question, the failure to instruct the jury further, that if, by the use of ordinary care, the deceased could have avoided the injury the plaintiff could not recover, is not error. L. & N. R. Co. v. Thompson, 113 Ga. 983 (39 S. E. 483), and cit.; G. F. & A. R. Co. v. Lasseter, 122 Ga. 680 (4), 689 (51 S. E. 15). In Southern Railway Co. v. Gore, 128 Ga. 627 (58 S. E. 180), and in S. A. L. Ry. v. Bostock, 1 Ga. App. 189 (58 S. E. 136), it is held that if,the pleadings and evidence raise the issue as to whether the injured person, by ordinary care, could have avoided the injury, it is error for the trial judge not to instruct the jury thereon, even in the absence of a written request. See also Atlanta Ry. Co. v. Gardner, 122 Ga. 82 (49 S. E. 818). We have shown above that the defendant did not specifically set up this defense in its answer, and it is perfectly plain that no such defense is indicated by^ the evidence; for it is undisputed that instantly with the jerk of the train the defendant fell headlong from the door of the ear and was immediately run over. What a man could have done under these circumstances to have avoided the negligence of the engineer in jerking the train (after he became aware that the negligence was existent and operative) is bejumd our power to conceive; for the beginning and the end of the whole casualty were included in the same twinkling of an eye.

Upon the measure of damages the court charged the jury as follows: “I charge you, gentlemen, in this connection, where the widow sues for damages for the death of her husband by the wrongful act of another, in estimating her pecuniary loss the jury may properly take into consideration her loss of the comfort, protection, and society of her husband, in the light of all the evidence in the case relating to the character, habits, and conduct of the husband as husband, and to the marital relations between the parties at the time of and prior to his death; and they may also consider his services in assisting her in the care of .the family, if any; but the widow is not entitled to recover for her mental anxiety or distress over the death of her husband, nor for his mental or physical suffering from' the injury. She is also entitled to reasonable compensation for the loss of support which her husband was legally bound to give her, based upon his probable future earnings and other acquisitions, and the station or condition in society which he would probably have occupied, according to his past history in that respect, and his reasonable expectations in the future; his earnings and acquisitions to be estimated upon the basis of the deceased’s health, age, business capacity, habits, experience, energy, and his present and future prospects for business success at the time of his death, all these elements to be based upon the probable joint lives of the widow and husband. She is also entitled to compensation for loss of whatever she might reasonably have expected to have received in the way of dower or legacies from her husband’s estate, in case her life expectancy be greater than his. The sum total of all these elements to be reduced to a money value, and its present worth to be given as damages. Within these limits the jury exercise a reasonable discretion- as to the amount to be given, based upon the facts in evidence, and the knowledge and experience possessed by them in relation to matters of common knowledge and information.” This language is taken literally from the case of F. C. & P. R. Co. v. Foxworth, 41 Fla. 1 (25 So. 338, 79 Am. St. R. 149), in which the Supreme Court of Florida construed the statute which was pleaded and proved as a basis for the present action. In the case of Savannah Ry. Co. v. Evans, 121 Ga. 391 (49 S. E. 308), in the 7th division of the opinion (p. 399) it will be seen that the Supreme Court approved the charge given by the trial judge in an action based on this same statute. In neither the report of that case nor in the opinion is the charge excepted to set forth,' but we have made an examination of the original record, and find that the judge there used the same quotation from the Foxworth ease as did Judge Shipp in the present instance. In addition to.raising, as counsel did in the Evans case, the point that there was no evidence to authorize a submission to the jury as to the several elements mentioned in the instruction above, present counsel make the further contention, that if this is the law of Florida, it was not pleaded and proved to be, and the court had no power to take judicial cognizance of it; that it is contrary to the-common law, which, says counsel, is presumed to exist in Florida, until the contrary appears. The Florida statute covering the transaction was pleaded and proved; so that the question whether the court could have taken cognizance of the existence of that statute is not'involved. The charge complained of is merely the judicial construction placed upon the language of the statute, and if that construction be correct the charge is not erroneous. Courts in construing statutes are entitled to resort to every source from which enlightenment may be obtained. Proof of a law and interpretation of law are very different things, and are effectuated by essentially different methods. Certain aids to construction have, however, been found to be so universally valuable that they are rarely, if ever, refused recognition. One of these canons of construction is that in construing the language of a statute of a sister State, the construction placed upon it by the highest courts of that State will be adopted; so many things other, than the mere words used enter into fixing the meaning of a legislative enactment, so many things purely local are to be regarded, that any other rule would likely be productive of much error. It would be an indecent assumption for the courts of this State to pretend that they are better qualified to announce the meaning of a law enacted by the General Assembly of Florida than the courts of that State are. Interpretation is a matter addressed solely to the intelligence, information, and learning of the judge, and he is not restricted as to the means by which lie may enlarge these faculties. , If a statute of a sister State is before him for construction, and he has information as to the'decisions of that State, whether through the volumes of reports as published by authority, or from any other trustworthy source, he ought to use that information as a guide to his judgment. If ever the presumption is to be indulged that the common law prevails in Florida, it not being one of the original thirteen States (and the strongest current of authority is that the presumption ■of the existence of the common law applies only to the original thirteen States, and to States made from them), certainly such a presumption is not to prevail against proof that the legislature of that State has enacted a different rule.

The defendant took the testimony of its train crew by depositions. These witnesses were present in the court-room during the trial. The defendant nevertheless read the depositions and did not place the witnesses on the stand. In his argument before the jury, Mr. Hawes, of counsel for plaintiff, referred to this fact and commented unfavorably on defendant’s course in this respect; he also insisted on the inference that defendant’s choice of method of presenting this testimony was induced by the fact that these witnesses “did not have the' courage to come into court and face the widow of their dead comrade and swear, as they had done in their depositions, knowingly and deliberately falsely.” Counsel ior the defendant objected to the argument, on the ground that it was improper, and asked a ruling of the court as to the propriety of the argument. It seems from the record that the objection was no broader than the statement of it just given. The court replied: The witnesses’ manner of testifying, etc., can be considered in ■determining their credibility.” He then read the code section embodying this principle (Civil Code, §5146), and stated that so long ■as plaintiff’s counsel kept his argument within the terms of that section of the code, the argument was legitimate. We are in doubt whether the objection is broad enough to raise any question for Teview. However, conceding the exception to be sufficient, we are “unwilling to say that counsel exceeded the bounds of legitimate •argument. He was merely discussing that.which appeared in the presence of the jury as a part of the history of the trial; he lugged in no extraneous fact; he drew inferences which may or may not have been well founded. We do not see why the manner in which a party' conducts his case is not a matter of legitimate comment, even though in strict law the party has the right to conduct his case in that particular manner. For example, suppose that counsel for defendant declines to argue the ease to the jury — he has a legal right to do this, — may not plaintiff’s counsel point to this fact and ask the jury to infer that he knew he had a bad case? May not a party who has been compelled by sufficient circumstances to present his testimony by interrogatories, while his opponent has been able to appear and testify personally, call to the attention of the jury the disadvantage enforced oh him in this respect, and ask them to weigh his testimony more liberally and that of his opponent more strictly on that account? If so, why may not one party point to the fact that the other party has voluntarily chosen to rely upon written depositions, in which the manner, etc., of the witnesses in testifying can not be observed by the jury, although the witnesses themselves are in court? The trial judge, however, should use a liberal discretion in controlling such arguments, and, if, under the particular circumstances, the line of comment is in fact unfair and illegitimate, should stop it or take other means to prevent the minds of the jury from being improperly swayed. In the present instance, although he did not rule that the argument was improper, the judge instructed the jury as follows: “There has been something said, gentlemen of the jury, during the progress of the argument of counsel, relative to some depositions that were introduced before you. I charge you, gentlemen of the jury, that the law gives to a litigant the Tight to take the testimony of a witness by written depositions, and to introduce these depositions in evidence in the trial óf the case in which they are taken, instead of putting the witness on the stand and examining him before the jury; and this being true, no presumption of law can arise that such litigant, in exercising the privilege thus conferred upon him by law, has acted otherwise than in good faith and without any intention to suppress the truth and perpetrate a fraud on the court and jury, or upon his adversary. So, gentlemen of the jury, the bare fact that the defendant railroad company has elected in this case to introduce the depositions of some of its witnesses, instead-of having them present at ■‘lie trial and examining them in open court, would not justify you in indulging against the company any unfavorable inference merely because of this circumstance.”

Objection has been made that the court allowed counsel for the plaintiff to ask certain leading questions of the plaintiff herself while she was on the witness stand. By explanatory note the judge states that this indulgence was granted on account of a physical impediment of speech with which the witness suffered. The allowance of leading questions is a matter peculiarly within the discretion of the trial judge. I may state that my observation and experience as a practitioner leads me to believe that illiberality of trial judges in not granting this privilege in proper cases has more frequently hindered the cause of truth and justice than strictness in refusing the indulgence has ever aided it.

The judge charged the jury on the annuity tables, using substantially the language suggested by Mr. Justice Lumpkin in the Burney case, 98 Ga. 1 (26 S. E. 730). This related, in the case at bar, to the ascertainment of the sum which should be allowed the widow as representing the support she would have received from her husband’s earnings. The objection is that in explaining to the jury how the tables might be used to reduce a sum expectant in instalments throughout future years to its present cash value, the judge employed the rate of seven per cent, in his illustrative calculations. The contention is that no rate of interest was pleaded or proved, and that under the common law (which counsel says should be presumed to be of force in Florida), no interest was allowable. If this contention were well founded it would not help the defendant; for the object of the calculation is to reduce the recovery, by requiring plaintiff to account for the interest on the present sum paid; the higher the rate of interest, the smaller the verdict. ■ However, we think that the method of reducing the expectant future damages to a present equivalent sum should be in accordance with the rule of the forum where the damages are being assessed and estimated, even though the tort which gave rise to the cause of action was committed in another State.

The above disposes of all the points which rve deem to be of sufficient importance to justify elaboration. We have gone through the record carefully and find no sufficient reason to set the verdict aside. It is large: but it must be remembered that the Florida laws recognize elements in. the assessment of damages in such, cases which our law does not. It is to the plaintiff’s good fortune, if her husband had to meet his death on the day he did, and in the way he did, that he crossed the State line just before it happened. ' Judgment affirmed.


source: Caselaw Access Project

author: Hill, C. J.

license: Public Domain

text:
    865.
    SOUTH GEORGIA BUILDING AND INVESTMENT COMPANY v. MATHEWS at al.

    1. A temporary injunction granted on ex parte proceedings is not conclusive of probable cause, in a suit brought to recover damages for malicious use of legal process in prosecuting the equity suit and in obtaining the interlocutory judgment.
    2. The allegations of the petition set out a cause of action for malicious use of civil process, resulting in special damages; and a judgment sustaining a demurrer thereto was erroneous.
    Action for damages, from city court of Fitzgerald — Judge Jay. November 7, 1907.
    Submitted February 3,
    Decided May 7, 1908.

      E. W. Hyman, for plaintiff. Crovatt & Whitfield, McDonald & Quincey, E. Wall, for defendants.
   Hill, C. J.

The South Georgia Building and Investment Comjiany brought suit against Thomas Mathews and Samuel Greer, to recover damages for the malicious prosecution of a civil suit without probable cause, or for the malicious use of civil process. The civil suit alleged to have been prosecuted maliciously and without probable cause was a suit in equity in the circuit court of the United States for the Southern District of Georgia, in which suit Thomas Mathews and Samuel Greer sought to set aside as fraudulent the sale of certain property to the South Georgia Building and Investment Company, and obtained an interlocutory injunction restraining the respondent from in any manner disposing of the property until the hearing. It is alleged, in the petition for damages, that this restraining order remained in force and effect from the time it was granted, in February, 1905, until June, 1906, and that during all this time the respondent’s property was tied up by the restraining order, and it was deprived of the right to dispose of the property or any part of it; that the filing of this equity suit was wanton and malicious, and was a malicious use of civil process; that it was filed and prosecuted- without probable cause and without any cause whatever; that each and every allegation of the equitable petition was wilfully and maliciously false, and that the complainants, Samuel Greer and Thomas Mathews, knew such statements to he false and malicious, when the petition was sworn to and filed in the United States circuit court, and when the restraining order was obtained. It was also alleged that the equity cause was an effort on the part of’the complainants therein to extort by blackmail a considerable sum of money out of the respondent therein, who would be willing to pay the money rather than await the slow processes of the United States court and incur the heavy expense of defending the. suit in that court, and that this was the sole purpose of the complainants in filing the equitable petition. The petition for damages specifically sets forth, by way of inducement, many facts, and inferences therefrom, which, it is claimed, sustain the general allegation that the equity cause was instituted and prosecuted in the United States court maliciously and without probable cause. These specific allegations it is not deemed necessary to set out here. The plaintiff' alleges that it was forced to pay out the sum of $1,100, as lawyer’s fees and other expenses, in making a proper defense to the equity suit in the United States court, and it sues to recover the amount so expended, as special and actual damages. A hill of particulars is attached to the petition, by an amendment setting forth the items claimed as damages. It is also alleged, that the equity cause was heard on demurrer in the circuit court of the United States, in the month of June, 1906, when the judge refused the injunction prayed for and entered an order dismissing the suit, and that the litigation, therefore, was at an end when this suit for damages was filed. The defendants filed a demurrer to the suit for damages, bn the ground that the'allegations of the petition set forth no cause of action. This demurrer was sustained, and the writ of error challenges the correctness of this judgment.

The allegations of the petition, in our opinion, constitute a good cause of action; and if the facts are proved as laid, the plaintiff would be entitled to recover the damages sued for. Three grounds are urged before us in support of the judgment of the court sustaining the demurrer. It is said, in the first place, that the shit is one for tbe malicious abuse of civil process, and that it is therefore barred by the statute of limitations; that the right of action, if any, accrued to the South Georgia Building and Investment Company at the date of the interlocutory restraining order granted by the judge of the United States court, and that in actions for damages of this character, suit can be commenced before the termination of the suit complained of as an abuse of legal process; that this restraining order constituted the legal process complained of, and that the statute of limitations began to run from its date. 'This contention on the part of counsel for the defendant in error, if the suit was one for the abuse of legal process, would be sound, as matter of law, provided the facts warranted the legal conclusion; but, as a matter of fact, the temporary restraining order was granted by the United States judge in February, 1905, and the present suit was brought in July, 1906. The suit was, therefore, not barred by the statute of limitations, as less than two years had elapsed between the granting of the restraining order and the filing of this suit for damages. We think the present suit, however, is one for the malicious use of civil process, and not for the malicious abuse of legal process. Clement v. Orr, ante, 117 (60 S. E. 1017), and decisions there cited.

It is next insisted by counsel for the defendants in error that the grant of the temporary restraining order by Judge Speer of the United States court furnishes conclusive evidence of probable cause, although the order was subsequently reversed by the judge and an injunction refused and the complainants’ bill dismissed, and that therefore .the demurrer in the instant case was properly sustained. Whether a judgment in favor of the plaintiff in a suit alleged to have been instituted_ and prosecuted maliciously is conclusive evidence that the suit was based on probable cause can not be stated as an inflexible rule of law. It depends, in every case, upon the allegations and the facts, the principle being well settled that such judgment will not, in every possible state of the case, be deemed to be conclusive of the question of probable cause, but that, like judgments in other cases, its effect may be destroyed by showing that it was procured by fraud or other undue means. In the case of Georgia Loan and Trust Co. v. Johnston, 116 Ga. 628 (43 S. E. 27), the subject ,is fully discussed, and the court approves of the rule laid down by the Supreme Court of the United States in Crescent Live Stock Co. v. Butchers’ Union, 120 U. S. 141 (30 L. ed. 614, 7 Sup. Ct. 472), that “The question of probable cause is a question of law, where the facts are undisputed; and the judgment of the court in favor of the plaintiff is conclusive proof of probable cause for the prosecution of the suit alleged to be malicious, notwithstanding its subsequent reversal by an appellate court, unless it is shown to have been obtained by means of fraud». This rule seems to reconcile the apparent contradiction in the authorities, is well grounded in reason, fair and just to the parties, and consistent with the principle on which the action for malicious prosecution is founded.” And it is stated by the Supreme Court of Georgia that “the general principle, thus qualified, is now well established by the weight of authority, and applies alike to cases where the action alleged to have been malicious was a criminal prosecution and to cases where it was a civil proceeding.” If, therefore, the judgment of the United States court was based upon undisputed facts, it would be conclusive evidence óf probable cause, although it was subsequently reversed by the same court; but the allegations of this petition are, that the statements set forth in the bill filed in the United States court were wantonly, wilfully, and maliciously false, and wholly without any probable cause.

In the case of Short v. Spragins, 104 Ga. 628 (30 S. E. 810), which is relied upon by the defendant in error, the petition for injunction admittedly set forth fairly and honestly the facts which were relied upon by the plaintiffs therein, and on which the injunction was granted and the appointment of the • receiver made, the court in that case saying: “Surely, it would be hard law which would render a plaintiff liable in damages for instituting an action, wherein he made a truthful and honest statement of the facts, in the event that notwithstanding a judge of the superior court was satisfied that upon those facts the plaintiff had a meritorious case, a ruling to that effect should afterwards be set aside. It can not matter that the same judge reversed the judgment rendered by him in sanctioning the petition.” In the present case the petition alleges, that the temporary restraining order obtained by the complainants in the suit in the United States circuit court against them was obtained by false and malicious statements made in their equitable petition, and that these false statements were made for the purpose of extorting blackmail from the respondents in that suit. We therefore conclude that no judgment obtained by ex parte proceedings can be deemed conclusive evidence of probable cause or want of malice, unless it appears that such judgment ivas based upon undisputed facts, or upon a statement of the case fairly and honestly made. Such judgment certainly can not be conclusive evidence of probable cause, where it is distinctly alleged in the petition for damages that it was obtained by false and malicious statements, wantonly and wilfully made for the purpose’of injuring the respondent therein. Mitchell v. Southwestern Railroad, 75 Ga. 398; Newell on Malicious Prosecution, 302, 303.

It is insisted that the mere bringing of the suit in the Federal court was not sufficient to authorize this suit for damages, because there was no seizure or interference with the property of the defendant company. But the allegation of the petition for damages is that something more was done than the mere filing of the suit in the United States court. An interlocutory order was obtained, by which the respondent was restrained from selling or disposing of its property for more than a year; and in order to get rid of this restraining order and enable the respondent to get control of its property, it became necessary for it to employ counsel and to pay, for counsel fees, witnesses, and expenses of attending court, the sum of $1,100, to recover which the present suit is brought.

We think that the plaintiff jn the court below was clearly entitled to go to the jury on the allegations made in the petition, and that therefore the judgment sustaining the demurrer and dismissing the petition was erroneous. Judgment reversed.


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

text:
    883.
    BENNETT v. WARE.
    1. One who professes to “heal the sick without the use of medicine,” but “by placing his hands upon that portion of the body that is affected by pain,” the healing resulting from “magic power given direct from the Lord,” is not a medical practitioner, and such treatment of the sick is not the “practice of medicine,” as defined and regulated by the statutes of this State.
    2. The purpose of the statutes regulating the practice of medicine is to protect the public against quack medical practitioners who use drugs and medicines in treating disease. These statutes do not include those who in their method of treatment eschew all use of drugs or medicine.
    3. Those who profess to heal the sick by magic, psychic, or supernatural agency may be impostors, but they are not physicians, and their system is in no sense the practice of medicine.
    4. Prima facie, a “magic healer” who takes the money of the sick is engaged in a fraudulent practice; and one who in good faith endeavors to stop such practice, by having the “magic healer” prosecuted for violating the statute regulating the practice of medicine, is not liable in damages for malicious prosecution.
    Action for malicious prosecution, from city court of Fitzgerald— Judge Jay. November 27, 1907.
    Argued February 4,
    Decided May 7, 1908.

      Hendricks & Christian, McDonald & Quincey, W. B. Smith, J. C. Smith, L. M. Burns, for plaintiff,
    cited: Political Code, §§ 1477-1581; Acts 1894, p. 88, sec. 9; 112 Ga. 338; 22 A. & E. Enc. L. (2d ed.) 786-8; 9 Ohio Dec. 222; 20 R. I. 632; 40 Neb. 158; 109 N. C. 864; 24 Ont. 561; 4 Brit. Columbia, 308; 34 L. T. N. S. 76; 62 Wisc. 207 (51 Am. R. 722); 69 Ill. App. 654; 175 Mass. 48; 55 Minn. 20; Civil Code, §§3843-5, 3848-50; 102 Ga. 264; 67 Ga. 58; 31 Ga. 331; 92 Ga. 421; 89 Ga. 367; 9 Mich. Dig. Ga. R. 159.

      Eason & Bull,.for defendant,
    cited: Civil Code, §147 et seq.; 112 Ga. 338; 22 Am. & Eng. Enc. L. (2d ed.) 785; 40 Neb. 158; 70 Mich. 6; Webst. Int. Diet., “Osteopathy.”
   Hill, C. J.

The plaintiff in error was arrested on a warrant sworn out by the defendant in error, charging him with practicing medicine. without a license, in violation of the statutes of this State. On a preliminary investigation he was discharged, and thereupon he brought suit against the defendant in error for malicious prosecution and false imprisonment. In the petition he alleges, that at the time of his arrest and incarceration in the common jail he was engaged in the “profession of healing diseases without the use of medicine, commonly and better known as a magic healer;” that he “heals the sick without the use of medicine in any form or manner whatever, by placing his hands upon that portion of the body that is affected by pain; that this gift or magic power is given him direct from the Lord;” that he made no charge for his services, but accepted such compensation as the gratitude of his patients induced them to voluntarily offer; and that as a result of his arrest and prosecution for practicing medicine without a license, he suffered great humiliation and mortification, lost two days compensation in “gifts,” amounting to $25 per day, was put to an expense of $15 in employing a lawyer to defend him against the untruthful accusation, and in fact “lost almost his entire practice;” that his prosecution was malicious and without probable cause, and he claims to have been damaged in the sum of $5,000. A demurrer was filed to this petition, on the ground that the allegations showed that the plaintiff was in fact practicing medicine and suggesting remedies for the sick and afflicted, and receiving compensation therefor, without complying with the statutes of the State regulating the practice of medicine, and, therefore, that there was probable cause for his arrest and prosecution. The demurrer was sustained, and this judgment comes to this court.

The direct question for determination is, whether the plaintiff, under the facts set out in his petition, was engaged in the practice of medicine as defined by the statutes of this State. He insists that his practice is neither within the letter nor the spirit of the law. By virtue of its police power, the State has enacted legislation to protect the public against unfit and incompetent practitioners of medicine, and to prevent the hurtful results of malpractice. A construction of this legislation will determine the issue made by the record. Section 1477 of the Political Code prescribes who shall be authorized to practice medicine in this State. The practicing physician is required to have “a diploma from an incorporated medical college, medical school, or university,” or shall be one who has been “in active practice of medicine since the year 1866,” after having attended “one or more full terms at a regularly chartered medical college,” “or who was by law authorizeed to practice medicine in 1866, or shall have been licensed by the medical board.” It is further provided, that the Governor of the State shall appoint three separate boards of medical examiners, each board to consist of five members selected from the three schools or systems of medicine designated by the statute, to wit, the “regular” or allopathic school, the homeopathic, and the eclectic school. Persons who desire to practice medicine and who are graduates of any incorporated medical college, school, or university requiring the designated course of study, are to be examined by one of these boards, the graduate of a particular school to be examined by the board composed of practitioners of that' school. But if the applicant desires to practice a system not represented by any one of the three boards, he may elect for himself the board before which he will appear for examination. When the examination is satisfactory, the applicant is granted a certificate allowing him to practice medicine upon complying with the law in reference to registration. Polit. Code, §§1479, 1482, 1486. Section 1478 of the Political Code undertakes to define the practice of medicine. “The words ‘practice medicine’ shall mean, to suggest, recommend, prescribe or direct, for the use of any person, any drug, medicine, appliance, apparatus, or other agency, whether material or not material, for the cure, relief, or palliation of any ailment or disease of the mind or body, or for the cure or relief of any wound, fracture, or other bodily injury or anjr deformity, after having received or with the intent of receiving therefor, either directly or indirectly, any bonus, gift, or compensation.” Section .1490 declares, that “any person shall be regarded as practicing medicine or surgery, within the meaning of this Article, who shall prescribe for the sick or those in need of medicine or surgical aid, and shall charge or receive therefor money or other compensation or consideration, directly or indirectly.”

In construing these statutes,-it is apparent that the law of this State recognizes only three systems or schools of medicine, — the “regular,” the homeopathic, and the eclectic schools. It is impossible for one who desires to practice any other system to do so in this State as a practitioner of medicine, because, under the law, he can not procure a license. In other words, the law only proposes to grant a license to practice medicine to the allopath, the homeopath, or the eclectic. It is true, the statute provides that '“if the applicant desires to practice a system not represented by any of the” three boards, “he may elect for himself the board before which he will appear for examination” (§1486); but this is a barren privilege, for none of the three boards can or will examine any applicant except one who has a diploma from a regular medical college, or who proposes to practice one of the three systems. For instance, none of the boards will recognize a diploma of an osteopath, issued by an osteopathic school, because such school is not a regular school, and none of the boards would be competent to examine the osteopathic applicant on the system that he had studied, and the applicant would not be competent to pass. an examination in any of the systems represented by the boards, for such systems formed no part of his curriculum. It would be absurd to say that one who practiced the healing art by magnetism, Christian Science, spiritism, hypnotism, mesmerism, or any other form for the treatment of disease, based -upon a supernatural agency, would be entitled to be examined by any one of the medical boards of the State; for the science of medicine is based on natural agencies. We therefore conclude that only those who propose to practice medicine by one of the schools or systems recognized by the statutes of this State are required to have a license.

But it is said that §1478 of the Political Code, supra, undertakes to define the practice of medicine, and that this definition embraces the particular practice of the plaintiff in error. He expressly disclaims the use of medicine in any form whatever, in his treatment of diseases, and therefore he must be excluded from the specific words of the definition, because he did not suggest, recommend, prescribe, or direct the use of any drug or medicine, appliance, or apparatus. According to his statement his method consisted simply in laying his hands on the sick at the point or place of pain or disease, and the healing which followed was by a direct divine agency. Do the words in the statutory definition above given, “or other agency, whether material or not material, for the cure, relief, or palliation of any ailment or disease of the ■mind or bodj^,” embrace an agency.of this character? It may be conceded that the words “material or not material” are sufficiently broad to include at least every human or natural agency. But was it intended by the legislature to denominate as a medical agency, whether material or not material, an agency claimed to be supernatural? It is true that faith on the part of the sick is a potent influence in all treatment of disease; but can it be said that faith is an agency? Are the sick who may be cured by magnetism, mesmerism, or hypnotism cured by any medical agency; or is an answer to prayer such an agency, and the person who pras practicing medicine? We can not believe that the legislature intended to include in the practice of medicine what may be called psycho-therapeutics, or any form of the treatment of the sick which makes faith the curative agency. But the words “other agency,” “material or not material,” should be construed in obedience to the maxim “no§citur a sociis,” and the meaning of the word “agency” must be limited by tbe associated words “drug, medicine, appliance, apparatus.” In other words, the word' “agency,” even as qualified by the words “material or not material,” was intended by the legislature to mean a substance -of the general character of a drug or medicine, or surgical apparatus or appliance, the obvious purpose being to protect society against the evils which might result from the use of drugs and medicines by the ignorant and unskilful. The purpose of the act is clearly indicated by its title, “to regulate the practice of medicine.” It was-not intended to regulate the practice of mental therapeutics, or to-embrace psychic phenomena. These matters lie within the domain of the supernatural. Practical legislation has nothing to-do with them. If they are a part of a man’s faith, the right to their enjoyment can not be abridged or taken away by legislation. However the so-called wisdom of this world may regard these things, it can not be denied that long before the Saviour told his disciples that in His name they should heal the sick and prevent all manner of diseases by the laying on of hands, the practice of healing by means of prayers, ceremonies, laying on of hands, incantations, hypnotism, mesmerism, and other forms of psycho-therapeutics existed. To the iconoclast who denounces these things as the (figments of superstition, or to the orthodox physician who claims for his system ali wisdom in the treatment of human malady, we commend the injunction of Him who was called “the Good Physician,” when told that others than His followers were easting out devils and curing diseases: “Forbid them not.” What matters the system, if in fact devils are cast out and diseases are healed P

Going back to the question now under consideration we deduce the following proposition: that the practice of medicine, defined by the code, supra, is limited to prescribing or administering some drug or medicinal substance, or those means and methods of treatment for prevention of disease taught in medical colleges and practiced by medical practitioners; that the purpose of the act regulating the practice of medicine was to protect the public against ignorance and incompetency, by forbidding those who were not educated and instructed as to the nature and effect of drugs and medicine, and for what diseases they could be administered, from treating the sick by such medical remedial agencies; that the law is not intended to apply to those who do not practice medicine, bnt who believe with Dr. Holmes, that “it would be good for mankind, but bad for the fishes, if all the medicines were cast into the sea,” nor to those who treat the sick by prayer or psychic suggestion. In the language of Chief Justice Clark, “Medicine is an experimental, not an exact, science. All the'law can do is to regulate and safeguard the use of powerful and dangerous remedies, . . but it can not forbid dispensing with, them.” “All the law so far has done or can do is to require that those practicing on the sick with . . drugs shall be examined and found competent by those ‘’of like faith and order.’ ” State v. Biggs, 133 N. C. 729 (64 L. R. A. 139, 98 Am. St. Rep. 741, 46 S. E. 401). We are therefore clear that the plaintiff in error was not a practitioner of medicine in the sense of our statute or in the popular sense; and the fact that he received fees and compensation for treatment, in the shape of gifts, could not make what would otherwise not be the practice of medicine a violation of the statute regulating such practice, for it must be apparent that if the mere laying on of hands amounts to the practice of medicine in any sense, it is so without reference to fee or reward.

In the view herewith presented we are strengthened by the decisions of courts of last resort in this country construing similar statutes. Osteopathy, a system of treating disease without the use of medicine in any form (which has made great advances in recent years, and, if the testimony of many intelligent men and women is to be believed, has worked many cures) has been frequently held not to be included in the term “practice of medicine or surgery,” .and, therefore, not included in the statute regulating the practice of medicine and surgery. The earliest case on the subject is that of Smith v. Lane, 24 Hun, 632, in which the Supreme Court of New York held that the practice of osteopathy was not included in the statute which declared it .to be a misdemeanor for any person to practice medicine or surgery .who was not authorized to do so by a license or diploma from some chartered medical school, State board of medical examiners, or medical society. This decision was based upon the idea that under the statute of New York no one would be issued a license to practice medicine unless he had a diploma from a regular medical college, the court giving to the words “practicing medicine” their usual, ordinary, and popular significance, and asserting, that the purpose of the act was to prevent incompetent or unqualified persons from administering or applying medical agencies, or performing surgical operations that might be dangerous to the health, as well as to the lives of the persons treated or operated upon, and that the purpose of the statute was to confine the use of medicines and the operation of surgery to a class of persons who, upon examination, should be found competent and qualified to 'follow these professional pursuits, but that no such danger could possibly arise from the treatment of an osteopath, and, for that reason, no necessity existed for interfering-with his pursuit by legislative action. A similar ruling was made in the case of an osteopath by the Supreme Court of Ohio, in the case of State v. Liffring, 61 Ohio St. 39 (46 L. R. A. 334, 76 Am. St. Rep. 358, 55 N. E. 168). The Ohio statute entitled “an act to regulate the piractice of medicine,” in defining the “practice of medicine,” uses the words “prescribe, direct, or recommend for the use of any person any drug or medicine, or other agency.” That court held that a “system of rubbing and kneading the bod3r,” commonly known as osteopathy, for the treatment, cure, and relief of diseases and bodily infirmities, was not an “agency” within the meaning of the statute. The Supreme Court of Kentucky, in Nelson v. State Board of Health, 108 Ky. 769 (57 S. W. 501, 50 L. R. A. 383), held, that one who practices osteopathy, not using medicine or surgical appliances, is not engaged in the practice of medicine within the meaning of the statute requiring a license for such practice, the language construed being, “to open an office for the practice of medicine, or to announce to the public in any way a readiness to treat the sick or afflicted, shall be deemed to engage in the practice of medicine within the meaning of this act;” and that this language referred only to those essaying to practice medicine proper, by the use of drugs. In the case of the State v. McKnight, 131 N. C. 717 (42 S. E. 850, 59 L. R. A. 187), the Supreme Court of that State held that an osteopath was not embraced within the term “practice of medicine.” Chief Justice Clark, speaking for the court, says, “The State has not restricted the cure of the body to the practice of medicine and surgery — ‘allopathy/ as it is termed —nor required that before any one can be treated for any bodily ill, the physician must have acquired a competent knowledge of al1-opathy, and be licensed by those skilled therein. To do that would be to limit progress by establishing allopath}' as the State system of healing, and forbidding all others. This would be as foreign to our system as a State church for the cure of souls. All the State has done has been to enact that when one wishes to practice medicine or surgery, he must, as a protection to the public (not to the doctors), be examined and licensed by those skilled in surgery and medicine. . . The State can only regulate for the protection of the public. There is also ‘divine science’ (which some one has said is neither divine nor a science), and there may be other methods still. Whether these shall be licensed and regulated is a matter for the lawmaking power to determine. Certainly a statute requiring examination and license before beginning the practice of medicine or surgery neither regulates nor forbids any mode of treatment which absolutely excludes medicine and surgery from its pathology.” In a subsequent case, the same court, by the same learned jurist, in a very elaborate opinion, reaffirmed the decision in the McKnight case, declaring that one who holds himself out as curing diseases by, a system of drugless healing without medicine or prescription, and who charges and receives fees therefor and has no license, is not guilty of practicing medicine or surgery without license. State v. Biggs, supra. The Supreme Court, of Mississippi, in the case of Hayden v. State, 81 Miss. 291 (95 Am. St. Rep. 471, 33 South. 653), in construing a statute in totidem verbis as the statute of this State, declared that it did not apply to an osteopath who used no drug or medicine, and that the word “agency,” used in the statute, was not intended to include such treatment. Many other courts, construing statutes substantially similar to ours, have made like decisions.

We admit that there are some decisions that hold the contrary; but we believe that the better rule, and one more in consonance with reason and in harmony with the republican character of our institutions, is, that all statutes for the regulation of the practice of medicine can be sustained only on the ground that they are necessary to protect the public against quack medical practitioners and impostors who prescribe drugs and medicines in treating diseases, and that these statutes are not directéd against or intended to include those who eschew the practice of medicine altogether, but advance some new theory, such as osteopathy, for the alleviation of pain and the curing of the sick, or those who heal or pretend to heal the sick by any form of mental therapeutics, such as Christian science, magnetic treatment, hypnotism, and the like. As to the science of osteopathy it may be remarked that a majority •of the States have, by appropriate legislation, recognized it as a legitimate treatment of the sick, and as not included within existing statutes regulating the practice of medicine. We think these constitute legislative precedents in favor of the construction which we place upon the act in question; and we think further that the medical profession, represented by the medical boards of this State who are charged with the duty of enforcing the law which regulates the practice of medicine, gives the same construction to the statute, in its omission to interfere with the rapidly increasing practice of •osteopathy. We would not be understood as meaning to embrace the osteopath in the same class with the magnetic healer. The practice of osteopathy is entirely antithetic to magnetic healing. The former relies entirely upon natural agencies, — indeed, we may say physical agencies; while the latter relies solely upon the supernatural. We cite the decisions construing osteopathy, as illustrations of our construction of the statute defining, the practice of medicine, the argument drawn therefrom being that if the practice of osteopathy, which' does require a knowledge of anatomy, physiology, patholog3>-, and what may be called the fundamentals •of medical and surgical practice, is not included in such statutes, the practice of the “magic healer” certainly can not be. In the language of the Supreme Court of Mississippi, “A wise legislature some time in the future will doubtless make suitable regulations for the practice of osteopathy, so as to exclude the ignorant •and unskilful practitioners of the art among them. The world, needs, and may demand, that nothing good or wholesome shall be denied from its use and enjoyment.” Hayden v. State, supra. The Supreme Court of Rhode Island, in the case of State v. Mylod, 20 R. I. 632 (20 Atl. 753, 41 L. R. A. 428), holds that the practice of Christian science is not the practice of medicine, and is not included within the act regulating the practice of medicine.

We therefore hold, that under the allegations of the petition, "the plaintiff in error was not engaged in the practice of medicine, and therefore was not violating, the law regulating such practice in this' State. But we do not think that the plaintiff in error was entitled to recover damages for malicious prosecution from the physicían who swore out the warrant against him. The question of law involved was sufficiently in doubt, in its application to his practice, to fully warrant a legal investigation of the question; and in taking out the warrant the defendant was fully justified by the existence of probable cause, and his act was without malice, but in behalf of the public. Besides, we think that the practice of the plaintiff in error, while not in violation of the statute regulating the practice of medicine, was presumptively an imposition upon the credulity of the public, which might in its consequences result in much 'injury, and that he was exercising a pretended power of magnetic healing, to the deception of the people, and was obtaining their money in the shape of gifts under false pretenses, and we do not think that the law should permit him to recover damages resulting from a legitimate effort on the part of a citizen to test the legality of his practice. We therefore affirm the judgment of the court below in sustaining the demurrer and dismissing the petition.

Judgment affirmed.

Russell and Powell, JJ., concur specially.

Powell, J.

I concur, but my concurrence is really a dissent from the views so ably propounded by Chief Judge Hill in his opinion. I think that the petition shows that the plaintiff, at the time of his arrest, was violating our statute against the illegal practice of medicine. Certainly he was not practicing medicine in the ordinary and popular meaning of' that expression; but the framers of our statute were not content with that meaning and gave the phrase a new and enlarged definition. According to §1478 of the Political Code, “the words ‘practice medicine’ shall mean, to suggest, recommend, prescribe or direct, for the use of any person, any drug, medicine, appliance, apparatus, or other agency, whether material or not material for the cure, relief, or palliation of any ailment or disease of the mind or body, or for the cure or relief of any wound, fracture, or other bodily injury or any deformity, after having received or with intent of receiving therefor, either directly or indirectly, any tonus, gift, or compensation.” If the definition had omitted the words italicised, then the word “agency,” under the rule of construction denoted by the phrase noscitur a sociis, would be held to mean some agency of the same nature as drugs, medicines, and appliances, all of which are material agencies; but with the palpable purpose of forbidding any such construction, the legislature added the words “whether material or not material.” Since in the practice of medicine as popularly understood, and as regulated by the statutes of most States, only material agencies are used, it becomes manifest that the object of our statute was to regulate not only the ordinary practice of medicine, as it is usually subjected to regulation, but also every imaginable practice by which human ingenuity should be likely to undertake to palliate or cure those physical “ills which flesh is heir to.” The words “material” and “not material” are absolute contradictories, in that they exclude all middle ground and together include everything thinkable. Human ingenuity is so multiform in its manifestations, and the professing of means to cure diseases of the human mind and body furnishes such a fertile field for its display, that in dealing with the question the lawmakers found it necessary to eschew specific enumerations and to employ the broadest and most comprehensive language.

I can not agree to the proposition that the object of this statute is only to forbid quacks from pretending to be regular physicians when they .are not so. The right of the legislature to say by what systems and by what classes of persons diseases shall be treated springs from the police power, of which the health and safety of the people are wards. Just as the legislature may prescribe how plumbing shall be done, of what materials and by what class of persons (Felton v. Atlanta, ante, 183, 61 S. E. 27), and may thereby exclude other methods, which may in fact be just as efficient though not believed by the law to be so, and may prohibit from working in this profession men who are just as competent as the recognized and licensed plumbers, but who have not in the statutory method proved themselves to be so, so it may limit the methods by which diseases are to be treated and may exclude every one from attempting to heal them who does not prove himself competent according to the method which the law itself believes to be the fairest and most expedient for testing his competency. I was about to draw a parallelism between the “magic healer” method of dealing with the problem of sanitary sewerage and that same method of dealing with disease, but the very statement of the first proposition would be too nonsensical and ridiculous to be judicial. The law -is as much interested in protecting the lowly of intellect from the superstitious handling of disease as in protecting them from the pretentious knowledge of the quack. If every citizen of the State were capable of exercising an intelligent discrimination as to the capacities of those who offer to treat human ills, then the interference of the legislature would, be an act of supererogation. Only the ignorant or the superstitious need protection. Those principles of laisser-faire which would forbid State interference to protect the weaker citizenship from their very weaknesses have never received much recognition in Georgia. The ignorant and superstitious parent who takes his child, critically ill, to a “magic healer,” when he should seek the advice and treatment of some skilled physician, and thereby lets it die, has done the perpetuation of the race the same injustice as if he had taken a knife and stabbed the child to the heart. Contemplate the effect on the community if a scourge of smallpox or yellow fever should fall upon it and the people should submit themselves to the care of “magic healers,” instead of physicians. The State has an interest in the mental and physical condition of its every citizen.

It may be that the statute which the law-making power has seen wise to enact excludes from the right to undertake the healing of the people some rvhose methods are rational, and who therefore ought not to be excluded; osteopathy may be an efficient system for the cure and palliation of fleshly ills, — indeed, I think it probably is; there may be other systems equally good, but now forbidden ; if so, the legislature should authorize them; but so long as that branch of the government to which this question is addressed says they are noxious to the public health, I feel that we, as judges, should hold them to be unlawful. My idea is that if any person, not having complied with the requirements of the statute, shall “suggest,' recommend, prescribe or direct, for the use of any person any . . agency, whether material or not material for the cure, relief, or palliation of any ailment or disease of the mind or body, . . after having received or with the intent of receiving therefor, either directly or indirectly, any bonus, gift, or compensation,” he is guilty of a misdemeanor; and that the plaintiff, who confesses in his petition that “his profession is and was at the time of his arrest . . that of healing diseases, without the use of medicine, commonly and better known as a ‘magic healer,’ ” and that at that time he had a “lucrative practice” in several comities, conclusively shows that probable cause existed for his arrest for a violation of tbe statute. It boots not that the plaintiff points to the prophets and apostles and says “it is a matter of Christian right.” If so,.let him give the powers without price. “Freely ye have received, freely give,” was Christ’s command, as He gave His apostles miraculous power over disease and death. Simony is equally abhorrent to the divine as to the civil law. So witness Simon Magus; also Gehazi, servant of Elisha, who took the talents and changes of raiment which his master refused for curing Naaman’s leprosy, and therefor suffered the master’s curse and “went out from his presence a leper as white as snow.”

I thoroughly agree with the Chief Judge in the opinion that irrespective of the question whether the plaintiff was violating the statute, he set out no cause of action. He bases his right to damages on the breaking up of his business. If he had any divine power and was selling it — a proposition absolutely absurd to the present-day mind — he was guilty of the common-law offense of simony; and while common-law crimes are not punishable as such, they are usually, civilly speaking, so unlawful even now, under our adoption of the common law, that they can not afford the basis of a cause of action in favor of the perpetrator. If he was taking money and professing to heal, and did not heal, he was a cheat and swindler. If he used material agencies and healed, he violated the statute regulating the practice of medicine. In any view his cause of action arose from an unlawful act, and he can not recover. Robertson v. Porter, 1 Ga. App. 223 (57 S. E. 993).


text:
    916.
    Padgett v. Waters, administrator, et al.

   Hill, C. J.

1. Under the Civil Code, §4738, when an affidavit of illegality is filed on the levy of an execution, it is the duty of the levying officer to “return the execution, affidavit, and bond, to the next term of the court from which the execution issued.” 'No exception to this rule arises by reason of the fact that the levy is upon land.

2. Where an execution issues from a justice’s court and is levied upon land, and an affidavit of illegality is filed, it is the duty of the levying officer to return the papers to the justice’s court for trial; and the superior court has no jurisdiction of the issue, except upon certiorari or appeal.

3. Statutory claim, and not illegality, is the remedy where property belonging to some person other than the defendant in fi. fa. has been levied upon, or where property belonging to a person individually has been levied upon under a fi. fa. against that person in his representative capacity. Judgment reversed, with direction.

Affidavit of illegality, from Tattnall superior court — Judge Kawlings. October 30, 1907.

Argued February 17,

Decided May 7, 1908.

A justice’s court execution against B. D. Kicklighter and J. B. Waters, administrator on the estate of D. L. Waters, deceased, was levied by a constable on certain land “as the property of J. B. Waters, administrator on the estate of D. L. Waters;” and an affidavit of illegality was interposed by J. B. Waters, as such administrator, on the following grounds: “1st. Because said fi. fa. fails to direct that it be levied upon the property to be found in the hands of affiant as administrator, said fi. fa. being against affiant as administrator, and affiant not having made any defense to the suit upon which the judgment was rendered that is the foundation of said fi. fa. 2d. Because the said fi. fa. is proceeding against the individual property of affiant, and said fi. fa. not being against this affiant individually, but as administrator only. 3d. Because the debt, the foundation of said fi. fa., was a debt against, the defendant B. D. Kicklighter and the deceased D. L. Waters as partners, and said fi. fa. should proceed first against the partnership assets and -property in the hands of said B. D. Kicklighter as surviving partner, and said fi. fa. can not legally proceed against the individual property of D. L. Waters, or of affiant as administrator, until said partnership property and assets have been exhausted, which has not been done. 4th. Because the debt, the foundation of said fi. fa., was an open account against said B. D. Kicklighter and D. L. Waters as partners, and it was not alleged in the original summons in the suit from which said fi. fa. issued that said partnership and said surviving partner were insolvent.”

Afterwards, in the superior court, the plaintiff in execution was allowed to amend the judgment so that it would be against J. B. Waters in his representative capacity alone, and to strike from it the words, “if not to be found, to be levied upon the personal goods and chattels, lands, and tenements of the administrator, J. B. Waters.” The affidavit of illegality was sustained by the superior court “because the levy appears to be made on the individual property of the administrator.” The plaintiff in execution excepted. The Court of Appeals, in its judgment reversing the judgment of the superior court, directs “that the affidavit of illegality and all other papers in the case be returned to the justice’s court having jurisdiction thereof.”

W. T. Burkhalter, for plaintiif.

Isaiah Beasley, Hines & Jordan, for defendants.


text:
    940.
    BANK OF SPARTA v. BUTTS et al.

    1. The pledgee of warehouse receipts, receiving the same as collateral upon a bona fide loan or discount of commercial paper, stands in the same privileged position as a bona fide purchaser for value of the property represented by the receipts.
    2. The bona fide pledgee for value of a warehouse receipt is vested with an indefeasible title to the property of which the receipt is symbolic. This title can not be affected or incumbered by any act of the pledgor or warehouseman, and is subject to defeasance only by the payment of the debt secured by the receipt.
    3. To charge an innocent pledgee of a warehouse receipt for an advance made by the warehouseman to the owner of the property represented by the receipt, the fact and amount of the advance should specifically appear in the receipt. A general statement in the receipt that it is subject to “customary charges and all advances” covers only charges necessary to the protection of the property, such as storage and insurance; such a statement is not sufficient notice of advances made on the property.
    4. A warehouseman who issues negotiable instruments symbolic of property in his possession can hot be permitted to destroy the commercial value of such instruments by secret and undisclosed advances.
    5. The pledgee of warehouse receipts is under no legal obligation to notify the warehouseman of the transfer to him of such receipts as collateral security.
    6. An action of trover against the warehouseman, to recover the property represented by the receipt, is an appropriate remedy, where he fails or refuses, on demand, to deliver the property to the holder of the receipt.
    Trover, from city court of Sparta — Judge Little. December 14, 1907.
    Submitted February 17,
    Decided May 7, 1908.

      R. L. Merritt, for plaintiff. W. H. Bwrwell, for defendant.
   Hill, C. J.

This was an action of trover brought by the Bank of Sparta against D. L. Butts, on the following state of facts: > Butts was engaged in the warehouse business, and also in the commission or supply business. In the year 1904, as warehouseman, he received from W. W. Devereaux eleven bales of cotton, which he stored in his warehouse, and for which he executed and delivered to Devereaux warehouse receipts. Devereaux owed the Bank of Sparta certain amounts on promissory notes, and he delivered to it, as collateral security for the pajunent of the notes, the warehouse receipts for five bales of the cotton stored in Butts’ warehouse. Devereaux failing to pay the notes, the bank notified Butts, the warehouseman, that it held the warehouse receipts for five bales of cotton, and offered to pay the customary charges, and directed that the cotton represented by the receipts be shipped to Garrett & Bussell, at Augusta, Georgia. Butts, the warehouseman, in answer to the demand thus made upon him, admitted the possession of the cotton, but refused to comply with the request or 'demand of the bank, and inclosed a statement of Devereaux’s indebtedness to him as warehouseman, for advances which he had made to Devereaux on the cotton, but offered to turn over the five bales to the bank if the latter would pay to him five elevenths of the advances which he had made on the eleven bales of cotton stored with him as warehouseman. The bank refused to pay Butts for any advances made to Devereaux, insisting that the cotton described in and covered by the warehouse receipts was only chargeable for storage and insurance. After suit was filed and before the answer of Butts was made, Butts sold six bales of the cotton which Dexereaux had stored with him, and, by consent of Devereaux, applied the proceeds thereof to his (Devereaux’s) indebtedness for supplies. The claim' of Butts for advances was thus reduced to the amount of $56.78; and he claimed that he had a lien on the five bales for Avhich the bank held warehouse receipts, and refused to deliver the cotton, until payment of this amount. The bank refused to pay anything but storage and insurance on the five bales for which it held receipts.

The case was tried by the judge Avithout the intervention of a jury, and he rendered a judgment against Butts for the full amount of the suit, less $34.38 principal, which the court allowed as a credit to Butts for advances which he had made on the cotton prior to December 30, 1905 (this being the date of demand by the Bank of Sparta for the cotton), and interest to that date on the said sum of $34.38 principal, amounting to $3.74. The writ of error challenges the correctness of this judgment, in allowing the credit above noted, of $37.03. On the trial the Bank of Sparta moved to strike that part of the defendant’s plea which set up the advances made to Devereaux by Butts on the cotton covered by the warehouse receipts. This motion was overruled, and the plaintiff excepted. It excepted also to the admission of the testimony of Butts, proving these advances, which testimony was admitted over its objection.

There are no disputed questions of fact in the case, the question being one of law arising from the facts as above substantially stated. This one question of law seems to be covered by sections of the Civil Code. Section 3956 provides, that “promissory notes and evidences of debt, warehouse receipts, elevator receipts, bills of lading, or other commercial paper symbolic of property, may be delivered in pledge.” Section 3957 declares that a pledgee is such a bona fide holder of the property represented by the symbol as will protect him under the same circumstances as' a bona fide purchaser. Section 3960 provides that while the general property in the goods or pledge remains in the pledgor, the pledgee has a special property for the purpose of the bailment. These sections of our code have been applied by the Supreme Court to warehouse receipts, in the case of Citizens Banking Co. v. Peacock 103 Ga. 171 (29 S. E. 752); and this decision, in our opinion, eliminates any question of doubt as to the rights of a bona fide holder of warehouse receipts, if, indeed, there was any doubt under these sections. Under this decision of the Supreme Court, supported by authorities therein cited, it is now well established that when warehouse receipts for cotton or other goods aré delivered in pledge, as collateral security for the payment of a debt, the legal effect of such delivery is to put the title to the property pledged and described in such receipt in the pledgee. The Supreme Court quotes with approval the statement of Mr. Colebrooke, in his work on Collateral Securities, §§413, 414, that “the transfer for value, as collateral security, of warehouse receipts, by indorsement and delivery, or by delivery only, where such receipts are made payable to ‘holder,’ or ‘only upon the return of this receipt,’ vests the legal title and possession of the property in the pledgee, and is equivalent to an actual delivery of the property;” and that “the pledgee of warehouse receipts, receiving the same, with or without indorsement, as collateral upon a bona fide loan ór discount of commercial paper, stands in the same privileged position as a bona fide purchaser for value;” and that “the pledgee of warehouse receipts is under no obligation to notify the warehouseman of the transfer to him of such receipts as collateral security.” The title to property represented by warehouse receipts becomes vested in the bona fide pledgee for value, and this title can not be defeated or incumbered by any act of the warehouseman, nor by any act of the pledgor. The pledgee has not only a lien on the property represented by the receipt, for his advances, but he has an absolute title to the propertjr, which is indefeasible except by payment of the debt.

It is contended in this case that the statement in the warehouse receipt, that the cotton which it represents is only deliverable to the holder of the receipt on-payment of “customary charges and all advances^” is sufficient to put any one who takes it on notice that any advance made on the cotton will have to be paid before the cotton can be demanded. These general words are printed in the receipt with a blank space left for the statement of the amount of the advances; and in the present case no amount 'is inserted in the receipts. We think that where warehouse receipts containing these words are pledged as collateral security, they do not convey notice to the pledgee that any advances have in fact been made, or that the pledgee would be required to pay any advances which may have been made or will be made on the cotton represented by the receipts. If, when the pledgee took the receipt as collateral, it contained a definite statement that, in addition to the customary charges, such as storage and insurance, a certain sum stated had been advanced to the pledgor, on the cotton, the pledgee would take it subject to that advance. It was the duty of the warehouseman, when he issued the receipt, if he had made an advance to the owner of the cotton at that time, to so state in the body of the receipt;'and if he subsequently advanced to the owner any money for supplies, on the cotton in his possession as warehouseman, he should have required the production of the receipt and have entered thereon a statement of such advance. Any other rule would render warehouse receipts worthless as collateral security. It would'enable the pledgor and the warehouseman to perpetrate a fraud on the pledgee, against which he would have no-protection. A mere inquiry made by the pledgee, of the pledgor, ■at the time of the pledge, as to the fact of advances would furnish no protection to the pledgee; and to require that the pledgee should go to the warehouseman and inquire as to the fact of advances would be wholly unreasonable. The receipt itself should bear upon its face the definite expression of the fact of advances. If' advances have been made, it should so state specifically; and if not so stated, the pledgee is protected. Of course, after the pledgee obtains possession of the receipts, the title to the property thereby represented is in him, and can not be incumbered by any act, as before stated, of the warehouseman or the pledgor.

The foregoing decision, we think, is in entire harmony with adjudicated eases and with the law merchant. We therefore conclude that the trial court erred in allowing a credit to the warehouseman for any advances which he had made, other than the customary charges for storage and insurance, prior to the date of the notice of the bank to him that it held the warehouse receipts. It was not necessary for the bank to have given him any notice; for when he issued the receipts he did so with the knowledge that they were negotiable, and that the title to the property represented by these symbols passed with their transfer. The judgment in favor of the plaintiff is correct, except that, as finally diminished by credits allowed by the court, it is not large enough. The judgment is therefore reversed, so that it may be corrected and remodeled by the court in accordance with this opinion. Judgment reversed.


text:
    927.
    Butts v. Bank of Sparta.
    Trover, from city court of Sparta — -Judge Little. December 14, 1907.
    Submitted February 17,
    Decided May 7, 1908.

      W. H. Burwell, for plaintiff in error. B. L. Merritt, contra.
   Hill, C. J.

This case is controlled, by the decision this day rendered in Bank of Sparta v. Butts, ante (61 S. E. 298).

Judgment affirmed.