1 Ga. App. 751 | Ga. Ct. App. | 1907
The plaintiff in error complains, that its motion for new trial was refused; and this is the only assignment of error in the bill of exceptions. The motion was based on the general grounds, and on four grounds which were added to the original motion by amendment. We will first consider the amended grounds, because, under the ruling of this, court in Crankshaw v. Schweizer, ante, 363, there is no merit in the general grounds, unless some error produced or contributed' to the result and the verdict complained of.
The first ground of the amended motion is, that the verdict is contrary to the evidence on the subject of value, and not authorized by the evidence. Plaintiff in error insists that in no event could the verdict have been greater than $100, that the only' evidence offered by the plaintiff on the subject of value, delivered by the husband of plaintiff, was to this effect. It is true that the husband of plaintiff testified, on cross-examination, that “they would have brought about one half of what they cost had they been sold;” but this was not the only evidence on this subject. Not only did the plaintiff’s husband swear as above quoted, which was merely his belief of what the goods would bring at a forced sale, but in further testifying, he said that the furniture in question cost $200, that it was still not quite a year old, and that he could not have gotten the same furniture at the time it was taken from the storage company for what he bought it for. C. A. Morris, of the defendant company, testifying in its behalf, it is true, placed the value at $50, $75, or $100; but on cross-examination he admitted that, at a forced sale, household goods, such as the personal property in question, very seldom brings what it is .worth, and gave his opinion, as an expert, that if he had household furniture that answered his purpose and which originally cost $200, and .which it would take $200 to replace, the furniture taken away from him would be equal in value to the new furniture. We think that the jury had the right, under the evidence, to fix the value of the property at the amount of their finding, under the proper charge of the court upon the subject of value: “The question of value is one of fact, which you will decide for yourself. You are not bound by the opinion of a witness as to value, you are
The second ground of the amended motion Complains that the court refused to allow the defendant'to show that Mrs. Wilkes was indebted to one Crutcher, for the property for which she was suing, and upon which the attachment was levied, for the purpose of recovering the purchase-money of the same. There was no error in this ruling/’ The reply of the trial judge, in rejecting, the evidence offered on this subject, was exhaustive, when he said, “You can not take her goods and pay Crutcher’s debt.” In the fourth ground of the amendment to the motion, the plaintiff in error complains that the verdict is -contrary to the charge of the court, quoted above. This ground, for the reason stated above, is not well taken.
The last ground of the amended motion asks for a new trial on the ground of newly-discovered evidence. The evidence discovered after the trial and verdict purports to be a certain conditional bill of sale, signed by the plaintiff, and in favor of B. S. Crutcher Furniture Company, describing the goods sued for in this case, by which title to the goods was reserved in the furniture company, and it was provided that in default of payments therein stipulated the furniture company should 'have the right to take possession of the property “without - any legal process.” We
Motions for new trials upon the ground of newly-discovered evidence are not favored by the law, and should not be. They are tolerated where it is apparent that grave injustice would result unless the newly-discovered evidence is admitted on another trial; and only then when it is clear that ordinary diligence could not have discovered the evidence sought to be adduced, and that a different result in view of the discovery ought to obtain. As said before, we think that ordinary diligence would have discovered the additional bill of sale; and, therefore, there was no abuse of discretion on the part of the trial judge in overruling this ground of the. motion for new trial. And we are not clear that even if it
It is undisputed, from the evidence, that the plaintiff stored her household furniture with the defendant for safekeeping, upon agreed valuable consideration. The defendant became thereby a bailee for hire. Under the Civil Code, §2930, a warehouseman is a depository for hire, and is bound even for ordinary diligence; and failure to deliver the goods on demand makes it incumbent on him to exercise ordinary diligence. And under the Civil Code, §2896, “In all cases of bailment, after proof of loss, the burden of proof is on the bailee to show proper diligence.” Under the facts disclosed by the record, the defendant in error showed the bailment, the proof of loss, and established demand upon the
Measured by this rule, it would have taken a wide stretch of the imagination on the part of the jury to conceive that the defendant would have acted as to property it believed to be its own as it did act with reference to the delivery of the bailor’s property in this ease. Could the jury have reasonably believed that if the Crutcher Company had laid claim to property of the storage company of similar nature, the storage company would, without let or hindrance, have allowed an agent of the furniture company to go into its warehouse and select for the furniture company such property as he claimed belonged to it, and would have delivered it to him and taken his receipt therefor and allowed him to carry it to the sidewalk, receiving directions from a bailiff who was acting under process absolutely void, and have made no inquiry or protest in the premises?
The very able counsel for plaintiff in error, of course, does not and can not deny that the attachment was void. The affidavit did not state that the property was in the possession of the defendant, or in possession of any other person who held it for the benefit of the debtor in fraud of the attaching creditor; and no valid bond was given, because the affiant to the affidavit to obtain the attachment was the surety on the bond, and the agent who separated and moved the goods. But the plaintiff in error contends that he should not be held liable for the delivery to the constable of the goods described. "Waiving the facts that the receipt in the record shows that the goods were delivered to Crutcher, and not . to the constable, and admitting for the sake of argument, that delivery was made to the constable, we do not
The plaintiff in error contends further, that he exhausted the requirement as to ordinary diligence by notifying one Mr. Johnson of the levy. The ordinary diligence required by the bailee is to be ascertained in every case, as a question of fact, by the particular circumstances of the case. Negligence and diligence are peculiarly questions of fact for the jury. If the evidence had shown that Johnson was the agent of the bailor, the jury would have been authorized to find that the storage company exercised ordinary diligence in bringing knowledge of existing conditions to the bailor through her agent. She could then have protected herself. But the burden of proving the agency, as the Bailee had parted with the property, was upon the bailee, who failed to show that Mr. Johnson was in any respect the agent of the bailor for any
It being admitted in argument before this court that the attachment levied upon the goods in question was void, counsel-insists that the rule of ordinary diligence did not' require the bailee, at expense to himself and at the risk of a forcible entrance of his warehouse by an officer, to take steps to resist the process, although void. We fail to find any case in which the -exact question has been determined in this State. But in view of what we have stated above as to the good faith required of the bailee, in the -exercise of ordinary diligence, where the rights of the bailor are affected, and especially in view of the definition contained in the Civil Code, §2898, we think the ruling in Robert v. Stuyvesant Safe Deposit Co., 123 N. Y. 57, is persuasive authority upon the point involved. That case was an action to recover damages for the alleged negligence of the defendant as a bailee for hire. The Stuyvesant Company, like the defendant in this case, was a corporation receiving property on deposit, as bailee, for safe keeping and storage. The plaintiff, as in this case, was a woman. The process to be enforced was a search warrant being served by an officer, but the process was invalid. The defendant’s officers protested against the seizure of the bailor’s property, but they furnished the levying officer with the means to identify its whereabouts, and he thereupon made the seizure. The facts of the two cases are similar, except that the Morris Storage Company did not even protest against the levying of the attachment. In the New York case, as in this, the levy or seizure was made after,the bailee had pointed out the property and surrendered its possession. The trial court held that the defendant performed its duty with reference to the property which it held as bailee, but the Court of Appeals reversed that judgment and held, as we hold here, that the defendant neglected to exercise that degree of diligence and fidelity to which it was bound, in the care and keeping of the property which the plaintiff had confided to its charge. In rendering the opinion the court says: “The persons who took the property had
Judgment affirmed.