Peninsular Naval Stores Co v. State

• Decision Date: 19 July 1917
• Docket Number: (No. 8311.)
• Parties: PENINSULAR NAVAL STORES CO. v. STATE.
• Court: Georgia Court of Appeals

93 S.E. 159

(20 Ga.App. 501)

PENINSULAR NAVAL STORES CO.

v.STATE.

(No. 8311.)

Court of Appeals of Georgia,

Division No. 2.

July 19, 1917.

(Syllabus by the Court.)

Error from Superior Court, Chatham County; W. G. Charlton, Judge.

Information by the State of Georgia to forfeit a certain lot of spirits of turpentine, claimed by the Peninsular Naval Stores Company, which intervened, filed plea and answer to declaration, and gave bond. Judgment against claimant, and it brings error. Affirmed.

Hitch & Denmark and John G. Kennedy, all of Savannah, for plaintiff in error.

Walter C. Hartridge and Bouhan & Herzog, all of Savannah, for the State.

BLOODWORTH, J. [1] Under section 1823 et seq. of the Civil Code of 1910, the solicitor general of the Eastern circuit filed informations in the name of the state of Georgia for the purpose of having two lots of spirits of turpentine, one containing 10 and the other 68 barrels, forfeited, and, after the same was seized under attachment, filed a declaration on the attachment. The spirits of turpentine was claimed by the Peninsular Naval Stores Company, which intervened, filed plea and answer, and gave bond. The defendant moved to strike paragraphs 1 and 2 of the declaration. This motion was overruled, and exceptions pendente lite were filed. Upon the trial of the case the jury returned a verdict against the defendant, and the case is here for review.

1. Paragraphs 1 and 2 of the petition each allege that the defendant knowingly had in its possession a certain number of barrels of spirits of turpentine, marked "D. G. Co., " under date of February, 1913, the said spirits of turpentine being stored at the Seaboard Air Line Naval Stores yard in Chatham county for sale, consignment, or shipment, which said barrels of spirits of turpentine were adulterated without being marked on the outside of said barrels with the words and in the manner prescribed by the act of the Legislature of the state of Georgia, approved August 17, 1903 (Laws 1903, p. 77). These paragraphs were demurred to— "upon the ground that the same do not allege with sufficient definiteness and certainty the defendant's knowledge of the adulteration of the spirits of turpentine therein described, as required by the act approved August 17, 1903, and codified in section 1824 et seq. of the Code of Georgia of 1910; the word 'knowingly' as used by the pleader having reference apparently to defendant's knowledge of its possession of the turpentine, rather than to defendant's knowledge of the alleged adulteration of said turpentine."

There was no error in refusing to strike, these paragraphs. The declaration follows the language of the act. Civil Code 1910, § 1823 et seq.; Brown v. State, 14 Ind. App. 24, 42 N. E. 244; Moeschke v. State, 14 Ind. App. 393, 42 N. E. 1029, 1030.

2. The jury returned a verdict as follows:

"We, the jury, find for the plaintiff against the Peninsular Naval Stores Company; that is to say, we believe that the turpentine attached was adulterated. We place the value of amount so attached at 3, 600 gallons at 26 cents per gallon market price at that date. We estimate the amount at $936. Henry G. Greene, Foreman."

Thereafter defendant filed a motion in arrest of judgment and a motion to set aside the verdict, the grounds of said motions being that the verdict was too uncertain and indefinite to form any legal basis for judgment; that the same was not a legal finding on the facts, and was not responsive to and did not cover the issues raised by the pleadings. The plaintiff filed a motion to reform the verdict, to which objections were made by defendant. These three motions will be treated together. If the verdict as rendered is a good and valid one, it settles the questions raised by the three motions. Under the Civil Code 1910, § 5927:

"Verdicts are to have a reasonable intendment, and are to receive a reasonable construction."

In Williams, Birnie & Co. v. Brown, Sheriff, 57 Ga. 304, the fourth headnote is as follows:

"Where a verdict may, by a reasonable construction, be understood, and a legal judgment can be entered thereon, it is sufficient."

See, also, Monk-Sloan Supply Co. v. Quitman Oil Co., 10 Ga. App. 390 (1), 73 S. E.

022.

The last paragraph of the petition in this case is as follows:

"That the plaintiff alleges the value of said spirits of turpentine to be the sum of $1,500, which amount, together with costs of said proceedings, he prays a judgment may be recovered against said Peninsular Naval Stores Company as principal and said United States Fidelity & Guaranty Company as security."

Applying the rule laid down in the Williams Case just quoted, in the light of the Code section supra and the pleadings, we are convinced that the verdict can be easily understood, and a legal judgment entered thereon. The verdict clearly means what it states after being reformed, that is:

"We, the jury, find for the plaintiff against the Peninsular Naval Stores Company * * * the sum of $936."

"A canon of construction often applied to verdicts is that all surplusage may be disregarded. The maxim 'Utile per inutile non vitiatur, ' saves a verdict from the taint of any ambiguity or uncertainty brought about by rejectable surplusage." Monk-Sloan Co. v. Quitman Oil Co., 10 Ga. App. 390, 73 8. E. 522.

See Southern Railway Co. v. Oliver, 1 Ga. App. 734, 58 S. E. 244; Geer v. Thompson, 4 Ga. App. 756 (3), 62 S. E. 500. While the words, "that is to say, we believe that the turpentine attached was adulterated, " add nothing to the verdict, their insertion does not render it invalid, and they can be stricken from the verdict as surplusage.

The verdict in this case covers the issues made by the pleading as shown by the prayer of the petition above quoted. In his order allowing the verdict reformed the presiding judge said:

"It seems to me that the verdict not only is susceptible of being put in proper shape, but is questionable if it even needs reforming. The finding of the jury was certainly against the defendant, and the sum named is beyond doubt."

From this order of the judge it appears that no objection was urged to the insertion...