Southern Railway Co. v. Atlanta Sand & Supply Co. , 8 Ga. App. 315 ( 1910 )

ON REHEARING.

Russell and Powell, JJ.

In the original opinion the judgment was affirmed as to the rulings on demurrer, but was reversed because the trial court erred in rejecting certain evidence offered by the defendant, tending to show that notwithstanding that it had failed to furnish cars in compliance with the plaintiff’s demand, under rule 9 of the Railroad Commission, the failure was occasioned by facts and circumstances which, under the decision of the Supreme Court in answer to the certified questions presented in this case, would have excused the defendant for not so doing. In the motion for rehearing the point is made that the defendant’s original answer contained only a denial of the paragraphs of the plaintiff’s petition in which was set up a violation of the rule through the failure of the defendant to furnish cars upon certain given dates and for a designated period thereafter; and that as this rejected evidence tended to support only these matters of justification or avoidance, it was not admissible under the original plea. They say further that, while the defendant in the court below (the plaintiff in error here) did tender an amendment setting up these additional matters of defense, the court disallowed it. In the record before us, one of the exceptions is to the disallowance of this amendment. The ground on which the court refused to allow it does not appear from the record; the recital being merely that on motion of the plaintiff the court overruled and disallowed the amendment. The amendment was not tendered until the trial term, and was not accompanied by the affidavit required by the statute in cases where an amendment is offered after the first term. To our minds, therefore, the case is squarely controlled as to this feature by Columbus Show Case Co. v. Brinson, 138 Ga. 487 (57 S. E. 871). We can not reverse the judgment of the lower court for refusing to allow an amendment to the pleading at the second term, where this affidavit is not filed, unless it affirmatively appears that the judge refused the amendment upon its merits, and not upon the technical ground. Where there is a failure to verify pleadings which are filed as a matter of right the rule is different from what it is where a party merely tenders an amendment as to which he must secure the consent of the court before it can be filed as part of the record. In the former case (where, say, a plea is regularly filed but not verified, and the court on motion strikes it) it would be presumed that the court struck it for some matter affecting the merits; because, the failure to verify being merely a matter of form, it would be waived, unless specially objected to by the opposite party. But where a party tenders an amendment which the law says may be rejected unless presented in a certain form, and the amendment states matters good in substance, but is deficient for lack of form, it will be presumed that the court refused it on the ground on which he had the right to refuse it, namely, the lack of form.

We are clear that the matters contained in the amendment can not be shown under the general denial contained in the original answer. They were purely matters of justification or avoidance. They did not tend to deny any one of the particular facts upon which the plaintiff relied, but merely attempted to negative liability under the law by showing additional facts which would exculpate the defendant from the apparent liability. The original answer contained no hint that the defendant would attempt to show, at the trial, matters which would tend to defeat the plaintiff’s right to recover, notwithstanding the plaintiffs proved to the letter every allegation of fact contained in the petition. Matter which is equally available for defense whether the allegations of the petition be true or not can not be received in evidence under a general denial, equivalent in effect to the old plea of general issue. It is our opinion, therefore, that this court was in error in reversing the judgment of the lower court for the exclusion of this evidence. The rehearing having been granted, it is hereby ordered that the judgment hitherto rendered be vacated, and that the judgment of the lower court be Affirmed.