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Complaint. Before Judge Fort. Talbot Superior Court. September 14, 1953.
DUCKWORTH, Chief Justice.
1. The evidence submitted by the plaintiff being sufficient to prove the allegations of the petition, the court erred in granting a nonsuit, which is in the nature of a general demurrer to the evidence but not to any defects in the pleadings.
2. Code 94-707, holding a section foreman of a railroad liable to pay owners double the value of stock killed on his particular section for his failure to file a list of the marks and brands of stock thus killed, irrespective of whether or not he has knowledge that said stock has been killed, contravenes the due-process clauses of the State and Federal Constitutions (Code 1-815, 2-103), and is void.
3. The invalidity of the statute under which this action is brought makes it impossible for the plaintiff to obtain a valid verdict and judgment, and the error committed in granting the nonsuit is harmless.
James Buchanan filed a petition in Talbot Superior Court against Charles heath, a section foreman of the Atlanta Coast Line Railroad Company, for the purpose of recovering double the value of three cows alleged to have been killed on the railroad, in that Heath failed to post a list of the different marks and brands of stock killed during the preceding weeks in which the cows were alleged to have been killed, in violation of Code 94-705, 94-707. The defendant filed an answer denying, in the main, the allegations of the petition, and by way of further answer alleged the unconstitutionality of the above Code section. General and special demurrers were filed to the answer and, after a hearing, were overruled, and the plaintiff excepted pendente lite to this ruling. When the case was called for trial, the plaintiff offered oral testimony and the defendant admitted in open court certain facts in an admission of facts, filed by the plaintiff. After the plaintiff rested his case, the court granted a nonsuit on motion of the defendant. The assignments of error here are on this judgment and on the previous pendente lite exception.
1. The admission of facts filed by the plaintiff and admitted by the defendant in open court as true, together with the oral testimony, proved the plaintiff's case as alleged in the petition, and the court erred in granting the nonsuit. A motion to nonsuit is in the nature of a general demurrer to the evidence, but does not go to any defect in the pleadings, and the only question to be determined is whether the evidence proves the case as laid. Reeves v. Jackson, 113 Ga. 182 (38 S. E. 314); Kelly v. Strouse, 116 Ga. 872 (4) (43 S. E. 280); Clark v. Bandy, 196 Ga. 546 (27 S. E. 2d 17); Wright v. Roseman, 209 Ga. 176, 183 (71 S. E. 2d 426). The allegations of the petition were that the cows were marked by tuberculin tags, and the evidence showed this; consequently the court erred in granting the nonsuit regardless of whether or not tuberculin tags are "marks and brands" within the meaning of the statute.
2. The ruling above makes it necessary that we rule on the question raised by the overruling of the general demurrer to the answer which, in effect, is a holding that the statute under attack is unconstitutional. But counsel for the plaintiff in error contends that no constitutional question was raised in the lower court, because (1) the defendant attempted to attack the constitutionality of the statute in his answer rather than by demurrer, and (2) the answer fails to raise the question properly in that it fails to point out the exact paragraph in the Constitution which the statute violates. While it is true, under Code 81-303, that the defendant must raise all issues of law by proper pleadings, his answer may raise the question as to the constitutionality of a statute that will materially affect his defense. Southern Cotton Oil Co. v. Raines, 171 Ga. 154 (155 S. E. 484); Southern R. Co. v. Wehunt, 177 Ga. 444, 447 (170 S. E. 380). Compare Mays v. Deraney, 207 Ga. 617 (63 S. E. 2d 380). Certainly, if the statute under which this action is brought is unconstitutional, the defendant has a perfectly valid defense, and this contention of counsel is without merit. Nor is there any merit in the contention of counsel that the defendant's answer attacking the constitutionality of the Code sections fails to enumerate the exact section in the named article of the Constitution where the alleged clauses may be found. The question was properly raised by attacking specific Code sections as denying the defendant equal protection and due process of law as guaranteed by the Constitution of Georgia and the fourteenth amendment of the Federal Constitution, and the answer clearly points out wherein the statute violates the constitutional provisions; and this court can not refuse to consider the question merely because it fails to point out the exact location of the due-process and the equal-protection clauses in the Constitutions.
Having thus decided that the constitutional question was properly raised, we now shall rule on that question. The section of the Code, 94-707, providing that a section foreman shall be liable for double the value of the stock killed by the railroad upon his failure to post the required notice, not only makes him liable for the failure to report that of which he has knowledge, but goes beyond this to subject him to a liability for failing to report the killing of stock of which he has no knowledge, and this is a clear violation of the due-process clause regardless of the fact that the penalty shall be "recovered in the manner provided for the collection of other claims." While he is given notice and a hearing in a court of law, nevertheless his failure to post notice automatically makes him liable regardless of any mitigating circumstances which he might have as a defense; and this is a violation of the fundamental principles of private right, as the final result of such action will be the taking of private property without due process of law. See Lloyd Adams, Inc. v. Liberty Mutual Ins. Co., 190 Ga. 633 (10 S. E. 2d 46).
It follows that the court did not err in overruling the general demurrer to the answer, since the claim of unconstitutionality in the answer is a valid defense to the action. This being true, no recovery could be had, under the law, by the petitioner. The invalidity of the statute makes it impossible for the plaintiff to obtain a valid verdict and judgment. Consequently the error in granting the nonsuit was harmless and does not authorize a reversal.
Judgment affirmed. All the Justices concur, except Wyatt, P. J., and Head, J., who dissent.
Lovejoy & Mayer, contra.
George C. Kennedy, for plaintiff in error.
Saturday May 23 03:26 EDT

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