Berry v. Cooper

• Decision Date: 30 June 1859
• Citation: Berry v. Cooper, 28 Ga. 543 (Ga. 1859)
• Parties: BERRY et al. vs. COOPER and BOYKIn, Exrs.
• Court: Georgia Supreme Court

28 Ga. 543

BERRY et al. vs. COOPER and BOYKIn, Exrs.

Supreme Court of the State of Georgia

JUNE TERM, 1859.

Case, in Muscogee superior court. Tried before Judge Worrill, at November Term, 1858. Motion for new trial, decided at May Term, 1859.

This was an action by the executors of Doctor Samuel Boykin, deceased, against Thomas Berry and others, owners of the steam-boat Franklin, to recover the value of one hundred and thirty-four bales of cotton, shipped on said boat and destroyed by fire.

This is the second time this case has been before this court.—See 21 Vol. Geo. Rep.——, where the facts will be found fully stated. The judgment of the court below was then reversed and the cause remanded for a new trial. Upon the second trial, the jury found for the plaintiffs eight thousand one hundred and seventy-four dollars and eighty-one cents ($8,174 81.) Whereupon defendants moved for a new trial upon the following grounds, viz:

1. Because the court erred in striking the plea of Alfred Prescott, one of the defendants.

2. Because the court erred in admitting that part of Belisle's testimony, in which he stated that the captain handed him a bill of lading.

3. Because the court erred in ruling out the testimony of William H. Harper, offered to show his, Harper's, custom and habit in taking bills of lading, for cotton shipped on all the boats on the river, by which he shipped, containing exceptions from loss by fire.

4. Because the court erred in ruling out the testimonyof W. H. Harper, showing his uniform custom, for several years, in shipping by the Franklin, to take bill of lading containing the exemption of loss by fire.

5. Because the court erred in charging the jury, as requested by plaintiffs' counsel, that if they believed from the evidence, that steam-boats on the Chattahoochee river sometimes gave bills of lading, for cotton, containing the exemption from loss by fire, and at other times bills of lading without such exemption, that then, no usage is established. The court having before charged, that to make a usage good it must be established, known, certain, uniform, reasonable, and not contrary to law.

6. Because the court charged the jury that if they believed from the evidence, that the steam-boat Franklin, sometimes gave bills of lading containing the exemption from loss by tire, and at other times gave bills containing no such exemption, then no usage by said boat is established.

7. Because the court charged the jury that if they be believed, from the evidence, that the boats on the Chatahoochee river, in a majority of instances, gave bills of lading containing exemption from loss by fire, yet if they in many instances gave bills of lading containing no such exemption, then no usage is established.

8. Because the court erred in charging the jury, that if, from the evidence, they believed the steamer Franklin, received the cotton as common carriers under a contract by which her owners were exempted from loss by fire, and if the cotton was not delivered, but was burnt on the boat, still the plaintiffs are entitled to recover, unless there was on the part of the defendants no negligence or want of due care, and the onus of proof of this fact lies on the defendants.

9. Because the court erred in refusing to charge, as requested by defendants' counsel, that if the proof showedthat it was the custom of the boats on the Chattahoochee river to give bills of lading exempting them from loss by fire—that the custom was certain, well established, and known to Wm. H. Harper, (plaintiffs\' agent in shipping the cotton,) and that the clerk of the boat offered to give Harper such a bill of lading, and Harper waived it, then the jury may infer an agreement of exemption from damage by fire.

10. Because the court erred in refusing to charge, as requested by defendants' counsel, that if the proof shewed that Harper gave the instructions to Creighton, the clerk of the boat, to leave the receipts to shew the number of the bales taken, the jury might presume that the parties did not intend that paper or receipt to contain the contract.

After argument, the court overruled the motion for a new trial, and counsel for defendants excepted, and assign said refusal as error.

W. Dougherty, and B. A. Thornton, for plaintiffs in error.

Johnson & Sloan, and Nisbets, contra.

By the Court.—Lumpkin, J., delivering the opinion.

All the grounds of error in this case, are set forth in the motion for a new trial; and for the overruling of which this writ of error is prosecuted.

1. The question made in the first assignment is, whether, under the act of 1853-'54, allowing either party to amend his pleadings at any stage of the case, a plea in abatement can be put in upon the appeal, and after a trial upon the merits?

We are clear that the act was intended to authorize no such practice. It was designed to expedite litigation, and not to retard it. The legislature never contemplated subverting the whole order of pleading, and such is the construction which this court has heretofore put upon the statute, (Kendrick vs. Whitfield, 20 Ga. Rep. 379-380.)

Dilatory pleas may be amended so long as they have a stage in the proceeding. But after a plea in bar or a plea to the merits, dilatory pleas have no longer a stage in the proceeding; and are no longer amendable. Nor does the case of Robinson vs. Wilson, (19 Ga. Rep. 505,) couflict with this view. True, under the act of 1836, a plea of partial failure of consideration could only have been made at the first term, and we held that under the act of 1853-54, (Pamphlet, p. 48,) it might be put in by way of amendment afterwards. But that was a plea to the merits, and which, but for the act of 1836, had a stage in the proceeding up to the final trial. We held that the act of 1853-4 was a virtual repeal of this provision in the act of 1836. The reason for which I never could comprehend, unless the legislature, supposing that they were permitting the party to avail himself of matter by way of defence, for which before be had to resort to an independent action, he should give the plaintiff notice of it at the earliest opportunity.

For myself, I must say, once for all, that I am weary of hearing the act of 1853-4 continually denounced by the Bar. It is a most salutary act, calculated, as I have already said, not to hinder and delay but to promote and expedite justice; and to aid in its administration. The fault is in the courts in not executing it according to its plain letter and spirit, not only by taxing costs, but by imposing such other terms as would carry out the purpose for which the statute was passed. For instance, suppose the opposite party has a deed to prove by witnesses living at a distance; and he makes known the fact to the court. The court says to the party applying, of course, you may amend—that is your right, but you must, in order to do so, admit the execution of this deed. I have the right, under the law, to fix the price which you are to pay, for the exercise of your privilege, provided in doing so, I do not make it so onerous as to amount to a denial of the just enjoyment of your privilege. How admirably the proceedings would work out. How much delay and expense would be saved ! And we should hear no more complaints against the carelessness in pleading which the act encourages. I repeat, the fault is not in the law. It is just and good, but in the courts and in counsel, in not claiming a quid pro quo for the benefits and indulgence which it confers on the pleader.

2. The second error complained of is, that Belisle was permitted to testify, that the captain of the boat handed to him a bill of lading. It seems that this evidence was introduced without objection at the time; and hence this ground of complaint is abandoned on the argument.

3 & 4. We think the court erred in ruling out the testimony of William H. Harper. It went to establish the custom on the river, which the defendants seek to...