Smith & Oneal v. Frost , 51 Ga. 336 ( 1874 )

McCay, Judge.

Upon the question so elaborately argued in this case, as to the weight of the evidence, and whether the verdict is for the proper amount according to the testimony, we express no opinion, since, under our judgment, there is to be a new trial, on other grounds.

1. The charge does not do full justice to the defendant below, under the evidence. The general principle laid down by the judge as to the duty of the warehouseman to use ordinary care, even when his custody of goods is interfered with by a vis major, is right enough, and is supported by authority as well as by the principles of justice. But there is a large element in the evidence that the charge ignores. The condition of things as disclosed by the evidence is peculiar. Not only was the cotton turned into the street by the Confederate authorities, but the defendants themselves were under duress. This the plaintiff knew. He was at home, was cognizant of the seizure of this cotton at the time it was done, and if he knew this was his cotton, or by the exercise of such prudence as a man of ordinary prudence usually exercises about his affairs, might have known it was his cotton, and could have saved and protected it, we think he is legally and justly chargeable himself with the loss. It occurs to us that common justice would require the owner, under such circumstances, to interfere for his own protection. He has no right to see his property go to ruin, relying upon his remedy over against tire warehouseman. Especially is this true if he knewj as he did, that the defendants were in the Confederate army and themselves under duress by a vis major. It seems to us that an owner of cotton, who, knowing that the warehousemen were thus situated, should see the cotton he had stored with them thus thrown into the street, has duties of his own to perform, and that if he neglected to perform them hé has no remedy.

2. Nor do the facts of this case — as that one of the defendants was in the county — make this rule inapplicable. The circumstances of his presence w?ere peculiar; he was absent without leave. We all know the position at that time of a man absent without leave from the army. He was constantly in danger of arrest. There was a constant scrutiny of papers by the enrolling officers and their underlings, so that even a sick or wounded soldier was compelled to be very particular to have his papers all right. And we think the judge, in charging the jury as to the liabilities of the defendant, if by ordinary care they could have saved the cotton, ought to have qualified his charge by letting the jury consider from the evidence whether the defendants were in such a situation as to be capable of exercising ordinary care. Duress by the vis major of the person, so as that he cannot exercise the ordinary care to save the goods, is just as much a vis major as a violent seizure of the goods.

Judgment reversed.