Everett v. Southern Express Co.

McCay, Judge. Had the defendant moved to dismiss this case for want of the affidavit required by the Act of October 13th, 1870, the Court would doubtless have heard him favorably. But he has neglected to do this, and both the parties have treated the case as not coming within the Act. Shall the defendant, after taking all the chances of a verdict in his favor on the other issues, be permitted now to come in and have a new trial, because the plaintiff failed on the trial to prove the taxes paid ? It is not to be expected that the Court shall, although he may interfere and take the defendant’s case into his own hands. True, the tribunal trying the case must dismiss the case if the plaintiff shall have failed to showtliat all legal taxes have been paid. Doubtless the Court here would have so done, had the motion been made. Had the [306] question been before the Court; had the affidavit been filed, so that the defendant could not have moved the dismissal on the calling of the case, there might be some point in the motion now. But by failing to do this he has consented to try the case as though it were not within the Act, and he cannot be permitted to blow hot and cold in this way; to put the country to the trouble and expense of a trial, and because he has failed in his defense to ask that the Court come to his relief, by listening to a motion for new trial. This law is not for the benefit of the defendant, but the public. Its legal operation is to deny to suitors the benefit of the Courts until they had paid the tax due on their claims. By the laches of the defendant the plaintiff has got the benefit of the Courts, and it is too late for him, the defendant, to complain. But we think the Court ought to have granted a new trial, on the other ground, to-wit: that the verdict is illegal as not sustained by the evidence. True, the Judge did not put his judgment on this ground, but that was one of the grounds distinctly stated in the motion. The judgment of the Court granting the new trial is excepted to; not the reasons he gave, nor the grounds he put it upon, but the order, decision or judgment of the Court, to-wit: setting aside the verdict and granting a new trial. If that judgment was good and right, for any reason contained in the record, it ought to stand. The judgment is one thing, the reasons given for it another. It is with the judgment this Court has to do. Ought that to be affirmed or reversed ? In our judgment, this verdict is not sustained by the evidence. Tin's Court has, in effect, decided that very tiling, when the case was before it at Milledgeville, in 37 Georgia, 688. The evidence there was the same as here, with the single exception, that the negro boy who carried the box to the express office now testifies that he did not open the box. The evidence as to the mode in which this valuable pin was put up is the same. The point of that decision was, that the carrier has a right to know the value of the article he is asked to carry, that he [307] may take the better precaution to prevent persons from stealing it from him, or to prevent its loss from carelessness. An article of small value presents few temptations to the thief. The company may safely entrust it to less trustful agents, and take less pains to protect and preserve it. Valuable articles ought to be, and usually are, put in a safe and are delivered by the most trustworthy agents into the hands of the consignee. And for this extra care and risk a higher price is charged. The proof here shows that a small article of great value was, either designedly or carelessly, put in a common paper box, tied up with a string, and its value, either designedly or carelessly, concealed from the knowledge of the carrier. Who knows why? The evidence does not show; but if there was no special design — if the extra charge was not the thing sought to be got rid of, the gross negligence of the consignor amounts to fraud. It misled the carrier; it put him off his guard. He had a gem in his custody, a thing to be specially cared for, and he did not know it; and this want of knowledge Avas the fault of the consignor. No person of ordinary prudence would send by a messenger a valuable article like this without special notice of its value, and were this defendant an ordinary carrier, we doubt if it would be possible to get a verdict against it on such facts. Unfortunately, there is not the same carefulness to do only strict justice in cases where rich corporations are parties. But the law knows neither the rich or the poor as such — justice to both is its rule. We feel ourselves bound by the decision of this Court in this ease, in any view of it, though we agree that it is right, and would, were the case now first before us, give the same judgment. We think, therefore, that the verdict ought to have been set aside as illegal. Judgment affirmed. »