16 S.E.2d 62 | Ga. Ct. App. | 1941
Lead Opinion
The judgment obtained against a voucher is conclusive against the vouchee as to the right of the plaintiff to recover the amount of the verdict in the suit against the voucher, and as to all defenses that either the voucher or the vouchee set up, or could have set up, in the suit against the voucher.
On the trial the evidence, including the through bill of lading, showed that Acme delivered the shipment in New York to the Pennsylvania Railroad and it was routed over that railroad to the Potomac Yards, and thence to the Southern at Baltimore, Maryland, the Southern being the delivering carrier at Atlanta, the destination of the shipment, and that the shipment was transferred from the freight-car in which it left New York to another freight-car on route, and that the shipment was on route three days over said railroads. The evidence further showed that the shipment, when delivered to the Pennsylvania Railroad weighed 164 pounds, and that when it was received by Saul in Atlanta it weighed 139 pounds. It was disclosed by the evidence that when Saul received the shipment there were no goods in one of the cartons, but only burlap bags, and that said carton "had the appearance of having been recoopered because of having two layers of tape sealing it." During the trial counsel for both parties entered into a stipulation "that the pilferage of the carton occurred in New York City and before the shipment was transferred by the Pennsylvania Railroad to the Southern Railway Company (which took place at Baltimore, Maryland)." Acme introduced in evidence all of the proceedings in the two previous suits, including the pleadings, the evidence, the judgments, and the two notices of avouchment to the Southern. The evidence further showed that before Acme delivered the shipment to the Pennsylvania Railroad, the shipment was kept by Acme for one night in a garage in New York City. It further appeared from the evidence that when Saul discovered that some of the clothing was missing from the shipment, he promptly notified the Southern of that fact, and that the Southern promptly sent one of its agents to Saul's store to investigate the matter.
In our opinion, under the facts of the case and the law applicable thereto, the judgments obtained in the two previous suits are conclusive against the Southern, and a verdict in favor of Acme *650
was demanded. In Raleigh Gaston Railroad Co. v. W. A. R.Co.,
The fact that the Southern, although vouched, did not appear in court and filed no pleadings in either of the two previous suits, is immaterial. It could have appeared, and, as shown by the facts *651 of the case, could have set up in those suits the same defenses which it made in this case; and having neglected to defend itself in those suits, it can not now be heard to contest the justice of the claim. The Southern has had its day in court, and can not have another. Bullock v. Winter, supra; Raleigh Gaston R.Co. v. W. A. R. Co., supra. It clearly appears from the evidence and the record that the ground of the liability of the vouchers in the two previous suits and the ground of the liability of the Southern in this suit arose from the same subject-matter — the shipment that the Southern itself, as the delivering common carrier, delivered at its destination. Furthermore, the notices of the avouchments served upon the Southern specifically informed it that the claims against the vouchers were in regard to the pilfering of that same shipment. The Southern was no stranger to the subject-matter of the former suits, and those suits were "of such a kind" that the Southern could have set up therein the same defenses which it could have set up if it had been a party defendant to the suits. This being true, and the Southern, having been properly vouched into court, is concluded by the judgments in the former suits, and a verdict for Acme was demanded by the law and the evidence. The cases cited in behalf of the Southern, which hold that the voucher "still has the burden of showing that the vouchee is responsible to him, and to do this will require allegation and proof of extrinsic matter unless the record in the former suits may suffice to establish such responsibility," are not in conflict with our present ruling, for the records in the two previous suits were sufficient to establish such responsibility against the Southern. Moreover, those cited cases did not deal with the controlling law in this case, to wit, that the judgment obtained against a voucher is conclusive against the vouchee as to the right of the plaintiff to recover the amount of the verdict rendered in the suit against the voucher, and as to all defensesthat either the voucher or the vouchee set up, or could have setup, in the suit against the voucher. The court erred in rendering judgment for the Southern.
Judgment reversed. MacIntyre and Gardner, JJ., concur.
Addendum
Rehearing denied. MacIntyre and Gardner, JJ., concur.