Cent. Of Ga. Ry. Co v. Morgan

Citation110 Ga. 168,35 S.E. 345
PartiesCENTRAL OF GEORGIA RY. CO. v. MORGAN.
Decision Date02 March 1900
CourtSupreme Court of Georgia

RAILROADS—ANIMAL ON TRACK—EVIDENCE-TRIAL—OPENING AND CLOSING—PLEADING.

1. In order to entitle a defendant to open and conclude the argument, he must, in his answer, admit enough to make out a prima facie case for the plaintiff; and such admission must be made, and the right to open and conclude asserted, before the plaintiff submits any evidence in the case, (a) Upon a review of the ruling announced in the first headnote to the case of Abel v. Jarratt, 28 S. E. 453, 100 Ga. 732, the same is affirmed, (b) The rule laid down in the decisions of this court in the cases of Ransone v. Christian, 56 Ga. 351 (Syl., point 2), and Steamship Co. v. Williams, 69 Ga. 251 (Syl., point 2, and subdivision "a" thereunder), was repealed by the provisions of the act approved December 24, 1888 (Acts 1888, p. 35), which now appear in section 3891 of the Civil Code. The manifest policy indicated in that act is to deny to the defendant in any case the right toopen and conclude unless he relieves the plaintiff of the burden of making out a prima facie case.

2. There was sufficient evidence to warrant the verdict.

(Syllabus by the Court.)

Error from city court of Savannah; T. M. Norwood, Judge.

Action by Florine E. Morgan against the Central of Georgia Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Lawton & Cunningham, for plaintiff in error.

Edward S. Elliott, for defendant in error.

LEWIS, J. Florine E. Morgan brought suit in the city court of Savannah against the Central of Georgia Railway Company for $175 damages resulting from the killing of a registered Guernsey cow by the running of defendant's train. To this petition the company filed an answer, in which it admitted simply that it was a corporation under the laws of Georgia, having its principal office in the county of Chatham. It denied each and every allegation of all the other paragraphs of the petition. Upon the issue thus formed a jury was impaneled, and after the conclusion of the evidence upon both sides the defendant amended its plea, admitting that plaintiff was the owner of the cow; that the cow was of the value stated in the declaration, and was killed by defendant's train on the day and time stated. In the amendment it further contended that by these admissions it assumed the whole burden of proof, and claimed the opening and concluding arguments. The Judge below refused to allow defendant's counsel to conclude the argument The Jury returned a verdict for the amount sued for, $175, whereupon defendant made a motion for a new trial, and excepts to the Judgment of the court overruling the same.

1. The ground mainly relied on by plaintiff in error in its motion for a new trial is alleged error in the court in refusing to permit It to have the opening and concluding arguments to the jury; having, after the conclusion of the evidence and before the argument, amended its answer as above specified. In a number of cases it has been decided by this court that to entitle a defendant to the opening and conclusion of an argument in a civil case, by virtue of an admission that the plaintiff had a prima facie right to recover, he must, before the introduction of any evidence, admit facts authorizing, without further proof, a verdict in plaintiff's favor for the amount claimed by him, and that it was too late, after the plaintiff had made out a prima facie case, for the defendant to make any admission which would deprive the plaintiff of the right to open and conclude. Abel v. Jarratt, 100 Ga. 732, 28 S. E. 453; Massengale v. Pounds, 100 Ga. 770, 28 S. E. 510; Cook v. Coffey, 103 Ga. 384, 30 S. E. 27; Dorough v Johnson (Ga.) 34 S. E. 168. It la conceded by counsel for plaintiff in error that these decisions cover this case, but it is claimed that they are in conflict with previous adjudications of this court, to wit, Ransone v. Christian, 56 Ga. 351 (Syl., point 2), and Steamship Co. v. Williams, 69 Ga 251 (Syl., point 2), and that, this court never having reviewed those earlier cases, they settle the law of this case. Counsel for plaintiff In error further ask a review of the ruling announced in Abel v. Jarratt, and cases above cited following that decision. Even if the later decisions of this court announce a principle directly in conflict with the rulings in the cases relied on by plaintiff in error, there is sufficient reason for such change of the former rule, for the statute upon which the rulings in 56 and 69 Ga. are predicated, it seems, first became a law upon the adoption of the Code of 1863, and will be found In section 2983 thereof. It declares: "In every case of tort, if the defendant was authorized by law to do the act complained of, he may plead the same as a justification; by such plea he admits the act to be done, and shall be entitled to all the privileges of one holding the affirmative of the issues." The identical section is embodied in all the subsequent Codes, except that of 1895. See Code 1882, § 3051. By virtue of the act of December 24, 1888 (Acts 1888, p. 35), that provision in the statute was amended by adding the following words: "But such plea shall not give to the defendant the right to open and conclude the argument before the jury, unless it is filed and insisted upon before the plaintiff submits any evidence to the jury trying the case." The law as amended is now embodied in the present Civil Code (section 3891). Manifestly, then, the cases relied on, being based upon the law as it was before the amendment of 1888, do not necessarily decide the question under the law as it now exists. The statute, as it originally existed, provided that if a plea of justification in an action of tort was filed, the defendant had the right to open and conclude, but nowhere specified when, during the progress of the trial, the defendant should have the right to file such a plea. It was therefore held in the cases decided that, the defendant having a right to amend at any stage of the trial, the fact that it was not filed until plaintiff had made out his case and closed his evidence did not take away from the...

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