Mitchell v. The Sw. R.R.

• Decision Date: 31 October 1885
• Citation: 75 Ga. 398
• Parties: Mitchell . vs. The Southwestern Railroad.
• Court: Georgia Supreme Court

75 Ga. 398

Mitchell . vs. The Southwestern Railroad.

Supreme Court of the State of Georgia

OCTOBER TERM, 1885.

Railroads. Jurisdiction. Service. Damages. Actions. Malicious Suit. Injunction. Before N. A. Smith, Esq., Judge pro hac vice. Sumter Superior Court. April Term, 1885.

On March 19, 1883, B.C. Mitchell brought his action for damages against the Southwestern Railroad Company, alleging, in brief, as follows: In 1880, and prior to that time, the plaintiff was the owner and in the rightful enjoyment of a valuable mill in the city of Americus, in Sumter county, which was run by water-power, and was located near the railroad of the defendant. He had the right to flood the land of the company with his dam, being an easement which he had acquired by authority of the company for a valuable consideration. A storm washed away "a portion of his dam and temporarily suspended his business. The defendant filed a bill to enjoin him from rebuilding his dam so as to continue his business, and obtained an injunction for that purpose. This was done by false and mali-cious allegations, and entirely without reasonable and probable cause, and was for the purpose of injuring and harassing the plaintiff. By reason of this, the plaintiff\'s mill was stopped, causing him to lose the profits from it; the property had deteriorated in value; custom which had been built up was diverted from the mill; and the plaintiff has been compelled to expend largo sums for attorneys\' fees. All these wrongful and illegal acts were done in Sumter county. It was alleged that a part of the defendant\'s road lay in that county, and that the defendant had an agent there.

Process issued, and the sheriff made the following entry of service:

' I have this day served Lott Warren, agent, at the depot, at Americus, Sumter county, Georgia, personally with a copy of the within, this March 20th, 1883."

A second original issued, with process directed to the sheriff of Bibb county, and was served on the president of the defendant in that county.

The defendant traversed the entry of service and pleaded to the jurisdiction, alleging that it had no office and no agent in Sumter county; that all of its property in that county was held under a lease by the Central Railroad, and the agent served was the agent of that company, and that the office of the defendant was in Bibb county. The defendant also made a motion to dismiss the case, on the ground that there was no legal service.

On the trial, the plaintiff introduced the record of the equity case, which terminated in his favor. A report of it will be found in 69 6a., 115, et seq He also introduced testimony substantially as follows:

C. W. Coker testified as follows: He built the mill and dam in 1868; had the consent of the road to flood the right-of-way, the authorities stating that they never made deeds, but never interfered with such improvements, as they were of advantage to the railroad in the way of shipping grain. The mill was built at an outlay of about $55,000altogether. The railroad made no objection to the mill or pond. The witness sold the mill to B. 0. Mitchell for ten thousand dollars. The mill was in sight of the road, near the right-of-way of the defendant; part of the dam and pond was on the right-of-way.

B. C. Mitchell testified as follows: Bought the property of C. W. Coker; before buying, saw Virgil Powers, superintendent, and inquired about the authority of Coker to use the right-of-way by back-water, etc. He told witness the company consented for Coker to use the right-of-way; that they never made deeds to their right of-way, but the company favored the building of such enterprises along their road. The railroad has used the water of the pond for a time; the dam prevents culverts from undermining; it also constitutes part of the approach to a road crossing; witness has spent a considerable sum of money on the property. The mill was shut down three years by the injunction. When the bill was served, he had bought a large bill of timber, and it was lost. Lost the repairs being done at the time the bill was filed, worth $150. The mill was worth from five to ten dollars per day during the time it was shut down, deducting all expenses, hire of miller, repairs, insurance, etc. The mill would net $1,200 per year for the three years. (The witness estimated the amount of damages to the mill-house and race and stated the amount of attorneys' fees.). Walden, the supervisor of the defendant, told him he would be glad for him to back the water near the culvert, as it would protect the culvert in case of a freshet. The mill and dam were built in 1868.

W. A. Black testified: Was a director of the railroad from its building to 1868, twenty years; then became agent. The mill was built soon after my agency began. Mr. Powers, at the building of the mill, was superintendent, and frequently passed along by the mill. Mr. Raoul succeeded Mr. Powers as superintendent. My agency terminated in 1878. Mr. Powers was a director when thecompany was organized, and was a director when I quit the agency at the depot in Americus, Ga., 150 or 200 yards from the pond. The pond is in plain view of the road and depot. Mr. Raoul frequently passed there. J. E. Jones was a director of the road when witness ceased to be. Mr. Holt died about 1880, and Jones became president. The Central Road had control of the Southwestern Road when I became agent at Americus; it was after the lease. I received orders from Savannah. The Central has been controlling and managing the road since. Did not know of any agent of the defendant in Sumter county since the lease; did not know of his own knowledge about the terms of the lease, outside of the papers themselves..

There was also other evidence which need not be detailed. On motion, the court granted a non-suit. The following are the assignments of error:

(1.) Plaintiff offered in evidence the original bill filed by the Southwestern Railroad. The court held that the counsel would have to put in all the record, including all the pleadings, orders, etc., to the decree, which they were forced to do, to get in what they wanted.

(2.) Plaintiff offered the motion for new trial by defendant in said case, the judgment thereon, the bill of excep-tions, as stated by counsel then and there, for the purpose of showing a continuation of said litigation. The court refused to allow either, unless plaintiff would put in, in connection therewith, all the evidence pro and eon, in said original case of file.

(3.) Defendant moved for a non-suit because there was no service; because the superior court of Sumter county had no jurisdiction; and because plaintiff had failed, by sufficient and proper proof, to show a want of proper cause for the original suit; and further, because the plaintiff had failed to show any malice on the part of the railroad. Counsel were discussing said motion; the court interrupted counsel, and said he did not care to hear from plaintiff on points made bydefendant\'s counsel for non-suit; and the plaintiff\'s counsel could address themselves entirely to the question of whether the proof showed any notice to the defendant of plaintiff\'s right to overflow the right-of-way, and the effect of the overflow, and the advantages of said mill, so as to show malice, and said to counsel they could assume that the proof showed want of probable cause, as the court considered that as established in the case. Counsel undertook to meet the suggestions of the court, but failed, and the court awarded a non-suit. Counsel asked the court to name the point or grounds of non-suit in judgment. The court admitted the ground, but failed to comply with the request, although the court had interrupted the counsel as to other questions in the case, and thereby prevented counsel from correcting any other defect.

E. G. Simmons; Guerry & Son, for plaintiff in error, cited, on non-suit, 42 Ga., 283, 435; 69 Id., 619; 65 Id., 309; 66 Id., 196; 63 Id., 488. On malice and probable cause, 5 Am. Dec, 547; 9 Id., 687; 12 Id., 267. On notice to corporation, 1 Peters, 299; 30 Conn., 380; 1 Cold. (Tenn.), 611; Taylor Corp., §210. On liability of railroad, 14 Am. Dec, 599; 7 Id., 603; 6 Cal., 399; 1 Hilliard Torts, 443; 2 Wait's Act. and Del'., 337; 4 Id., 339, 341; 18 Cent. L. J., 242; 20 Id., 274.

Lyon & Gresham; Hawkins & Hawkins, for defendant, cited, on non-suit, 27 111.,. 489; 19 Ala., 344; 26 Id., 616; 33 Vt., 486. On malice and probable cause, 2 High. Inj., §1648; 10 B. Monroe, 17; 8 Id., 37; 55 Miss., 5674 Mo. App., 195, 505; 2 Sedg. Dam., 210, note; 31 Barb., 158; 20 N.Y., 99; 73 Id., 371; 53 111., 479; 12 How., 168, 179; 10 Humph., 325; 49 Ga., 160; Code, §§2987, 2957; Wood Dam., 571. On service, Code, §3369. On jurisdiction, Code, §3406; 69 Ga., 763; 53 Id., 501. On...