Southern Ry. Co. v. Atlanta Sand & Supply Co.
| Decision Date | 06 September 1910 |
| Docket Number | 1,808. |
| Citation | 68 S.E. 1078,8 Ga.App. 315 |
| Parties | SOUTHERN RY. CO. v. ATLANTA SAND & SUPPLY CO. |
| Court | Georgia Court of Appeals |
Upon Rehearing, September 29, 1910.
Syllabus by the Court.
The controlling questions in this case have been certified to the Supreme Court and answered at length. It is deemed unnecessary for this court to go into an elaboration of the facts or points; but reference is had to the decision of the Supreme Court. 68 S.E. 807.
(Additional Syllabus by Editorial Staff.)
Where a party at the trial term tenders an amendment to his pleading without the affidavit required by statute, the court's refusal to allow the amendment cannot be reviewed, unless it affirmatively appears that the judge refused the amendment upon its merits, and not upon the technical ground.
Where there is a failure to verify a pleading filed as matter of right and the court strikes it, it will be presumed that the court struck it for some matter affecting the merits because, the failure to verify being a matter of form, it would be waived, unless specially objected to by the opposite party. But where a party tenders an amendment which may be rejected unless presented in a certain form and the amendment states matters good in substance, but is deficient in form it will be presumed that the court's refusal thereof is for lack of form.
Matter which is equally available for defense, whether the allegations of the petition be true or not, cannot be received in evidence under a general denial equivalent in effect to the old plea of general issue.
Error from City Court of Atlanta; A. E. Calhoun, Judge.
Action by the Atlanta Sand & Supply Company against the Southern Railway Company. Judgment for plaintiff, and defendant brings error. Case certified to the Supreme Court and questions answered (68 S.E. 807), and judgment affirmed on rehearing.
McDaniel, Alston & Black, for plaintiff in error.
Moore & Pomeroy and W. W. Hood, for defendant in error.
Judgment reversed.
Upon Rehearing.
In the original opinion the judgment was reversed because the trial court erred in rejecting certain evidence offered by the defendant, tending to show that notwithstanding that it had failed to furnish cars in compliance with the plaintiff's demand, under rule 9 of the Railroad Commission, the failure was occasioned by facts and circumstances which, under the decision of the Supreme Court in answer to the certified question presented to them in this case, would have excused it for not so doing. In the motion for rehearing the point is made that the defendant's original answer contained only a denial of the paragraphs of the plaintiff's petition in which was set up a violation of the rule through the failure of the defendant to furnish cars upon certain given dates and for a designated period thereafter, and that, as this rejected evidence tended to support only these matters of justification or avoidance, it was not admissible under the original plea. They say further that, while the defendant in the court below (the plaintiff in error here) did tender an amendment setting up these additional matters of defense, the court disallowed it. In the record before us one of the exceptions is to the disallowance of this amendment. The ground on which the court refused to allow it does not appear from the record; the recital being merely that on motion of the plaintiff the court overruled and disallowed the amendment. The amendment was not tendered until the trial term, and was not accompanied by the affidavit required by the statute in cases where an amendment is offered after the first term. To our minds, therefore, the case is squarely controlled as to this feature by Columbus Show Case Co. v. Brinson, 128 Ga. 487, 57 S.E. 871. We cannot reverse the judgment of the lower court for refusing to allow an amendment to the pleading at the second term, where this affidavit is not filed, unless it affirmatively appears that the judge refused the amendment upon its merits, and not upon the technical ground. Where there is a failure to verify pleadings which are filed as a matter of right, the rule is different from where it is where a party merely tenders an amendment as to which he must secure the consent of the court before it can be filed as part of the record. In the former case (where, say, a plea is regularly filed, but not verified, and the court on motion strikes it), it would be presumed that the court struck it for some matter affecting the merits, because, the failure to verify being merely a matter of form, it would be waived, unless specially objected to by the opposite party. But where a party tenders an amendment which the law says may be rejected unless presented in a certain form, and the amendment states matters good in substance, but is deficient for lack of form, it will be presumed that the court refused it on the ground on which he had the right to refuse it, namely, the lack of form. We are clear that the matters contained in the amendment cannot be shown under the general denial contained in the original answer. They were purely matters of justification or avoidance. They did not tend to deny any one of the particular facts upon which the plaintiff relied, but merely attempted to negative liability under the law by showing additional facts which would exculpate the defendant from the apparent liability. The original answer contained no hint that the defendant would attempt to show at the trial matters which would tend to defeat the plaintiff's right to recover, notwithstanding they (the plaintiffs) proved to the letter every allegation of fact contained in their petition. Matter which is equally available for defense, whether the allegations of the petition be true or not, cannot be received in evidence under a general denial equivalent in effect to the old plea of general issue. It is our opinion, therefore, that this court was in error in reversing the judgment of the lower court for the exclusion of this evidence. The rehearing having been granted it is hereby ordered that the judgment hitherto rendered be vacated, and that the judgment of the lower court be affirmed.
I think the decision of the court as heretofore rendered is right, and should be adhered to. The suit was to recover damages against the railroad company for a violation of rule 9 of the Railroad Commission of the state. At the appearance term the defendant filed a plea of general issue, and at the trial term it filed an amendment to the plea, which was disallowed by the court, and exceptions pendente lite were preserved. At the conclusion of the evidence, the court directed a verdict for the plaintiff. The writ of error challenges the constitutionality of rule 9 on various grounds, and also the correctness of the ruling of the trial judge in disallowing the amendment to the plea and in subsequently, on the trial of the case, excluding from evidence testimony offered by the defendant tending to show that it had not violated that rule, and was not indebted to the plaintiff in any sum on account of its failure to comply with its request to deliver the cars. This court certified to the Supreme Court the constitutional questions made, and also certified to the Supreme Court the question whether as a matter of law the defendant railroad company in defense to the action could set up certain matters to prove that it was not at fault in not furnishing the cars requested by the plaintiff, these matters of defense being covered by the amendment to the plea, which was disallowed by the court, and being also embraced in the testimony which was excluded from evidence by the court. The Supreme Court answered the questions certified to it, sustained the constitutionality of the rule in question, and also held that some of the defenses set up by the defendant and offered to be proved by it were valid and sufficient under the law. It is not necessary in this place to set out the defenses which the Supreme Court holds could be made by the railroad company in such case. Reference is had to the decision of the Supreme Court on that question as reported in 135 Ga. --, 68 S.E. 807 et seq. As the trial court had expressly disallowed the amendment setting up the defenses, and had subsequently rejected the testimony which was offered under the plea of general issue (for the amendment had been rejected when the testimony was offered), this court in a brief headnote reversed the ruling of the trial court in excluding the evidence which the Supreme Court held would, if proved, have constituted a valid and sufficient defense to the suit. I think the judgment of this court was a necessary corollary to the decision of the Supreme Court on the question as to the sufficiency of the defense which the railroad company attempted to establish by the testimony which was excluded from evidence by the trial court. In my opinion this court should have gone further in its decision, and should have also held that the trial court erred in disallowing the amendment to the plea. But, regardless of the question whether the amendment to the plea was properly or improperly disallowed, I think that the testimony which was excluded by the trial judge set up matters of defense to the plaintiff's cause of action, and was admissible under the general denial of liability filed by the defendant company. In other words, I do not think that the amendment which the court disallowed was essential to the introduction of the...
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