Eagle & Phenix Manufacturing Co. v. Welch

Bleckley, Justice. 1. The declaration alleged an undertaking to furnish suitable powder; and it alleged, also, a breach of that undertaking by furnishing mixed powder, a more hazardous arti [448] cle. It averred that the increased hazard was unknown to the plaintiff; it averred that the explosion took place by reason of the premises; it failed to specify any particular elements in the mixture which rendered it unsafe, or less safe than suitable powder would have been. It was demurred to generally, and the demurrer was overruled. Contract creating a duty, breach of contract, injury therefrom, and damage by reason of the injury, were all most distinctly averred. The failure to specify any ¡^articular elements in the mixture which rendered it unsafe, or less safe than suitable powder would have. been, was matter for special demurrer, if for demurrer of any kind. A general demurrer to the declaration was properly overruled. 2. That a witness is beyond the jurisdiction of the state is generally a sufficient cause for not producing him. 6 Ga., 382; 7 Ib., 356, 445; 8 Ib., 201; 10 Ib., 261 (7); 13 Ib., 510; 39 Ib., 75; 1 Gr’l’ff’s Ev., §163 and note. The showing made as to the plaintiff’s absence was enough to raise the presumption that he had gone beyond the jurisdiction and had not returned. As the suit was not proceeding for his benefit, but to enable his counsel to realize their fee, he was upon the footing of any other witness, and what he testified upon the previous trial of the same case was competent evidence under section 3782 of the Code. That section is in these words: “ The testimony of a witness since deceased, or disqualified, or inaccessible for any cause, given under oath on a former trial, upon substantially the same issue and between substantially the same parties, may be proved by any one who heard it, and who professes to remember the substance of the entire testimony as to the particular matter about which he testifies.” 3. As to the sufficiency of the evidence to uphold the verdict, we need only say that it was possible for the jury to find as they did without any influence of passion or prejudice, and the presiding judge not having thought proper to disturb the verdict, we do not feel constrained to hold [449] that there was any mistaken exercise of his discretion. The verdict may stand. Judgment affirmed.