Southern Railway Company v. Turner

I do not think that the railroad could be held to have subjected itself to a statutory penalty by waiver or estoppel because to do so would be adding to a penal statute by implication which is not permissible. 23 Am. Jur. 631, 632, §§ 37, 38; 25 C. J., § 133, p. 1205; Southern CottonOil Co. v. Raines, 167 Ga. 880 (147 S.E. 77);Thompson v. Watson, 186 Ga. 396 (197 S.E. 774, 117 A.L.R. 484); Peterson v. State, 13 Ga. App. 766 (79 S.E. 927); Code (Ann. Supp.) § 102-102, catchwords "Penal Statutes." However by amendment the plaintiff alleged that the claim filed was a verified claim but that if it was not the railroad was liable for the penalty by reason of waiver of the verification. There was no special demurrer attacking this allegation and the plaintiff was entitled to recover the penalty solely for the reason that the plaintiff was entitled to recover the penalty upon proof of waiver. The defects in pleadings may not be taken advantage of by a motion for a new trial. Kelly v. Strouse, 116 Ga. 872 (6) (43 S.E. 280); Boswell v. Federal Land Bank of Columbia,181 Ga. 259 (182 S.E. 1); Nixon v. Nixon, 194 Ga. 302 (21 S.E.2d 702); Twilley v. Twilley, 195 Ga. 291 (24 S.E.2d 41); Harbin v. Hunt, 151 Ga. 60 (105 S.E. 842).