killing and injuring of the plaintiff's live stock were not due to any negligence of the defendant or its employés, the presumption of negligence was completely rebutted, and the recovery in favor of the plaintiff was unauthorized. Georgia Railroad & Banking Co. v. Wall, 80 Ga. 202, 204, 7 S. E. 639; Georgia Southern & Florida Ry. Co. v. Sanders, 111 Ga. 128, 36 S. E. 458; Atlantic Coast Line Railroad Co. v. Cox, 11 Ga. App. 384, 75 S. E. 268.

costs in

court and the further sum of
this court." It is not clear from the language
of this judgment that it is a final one; but ap-
parently it was so intended by the court, since
the case was not remanded for another trial, and
since judgment was rendered not only for the
costs in the superior court but also for the costs
in the justice's court, which latter item of costs
could not legally have been included in the judg-
ment unless it were a final decision upon the
certiorari. Park's Ann. Code, § 5204; Haire v.
It also appears that this judgment was consider-
ed as a final disposition of the case by both par-
ties, counsel for plaintiff expressly stating in
their brief that it was a final judgment in the
case, and counsel for the defendant (who filed
no brief, but who acknowledged service upon
them of the brief of opposing counsel), by their
silence, apparently acquiescing in this view.
Under these particular circumstances the judg
ment will be treated as a final disposition of the
case, and it is therefore reversed, with direction
that the case be remanded to the justice's court
for a new trial.

(a) This was a suit for the killing of one ox and the injuring of another. The engineer tes-McCardle, 107 Ga. 775 (2), 778, 33 S. E. 683. tified that on the occasion in question it was about 12:50 o'clock on a very foggy night; that the train was running about 30 miles an hour; that he had been and was looking ahead, all the time; that the engine was equipped with an electric headlight in good condition; that on a clear night, with this light, he could see on a straight track a quarter of a mile; that the track at this point was straight for a considerable distance, but that because of the fog on this occasion he could not see an object more than 100 feet ahead; that when he first saw the ox (he saw only one ox) it was about 100 feet ahead, near the edge of the track; that the train was equipped with air brakes, in good condition; that immediately upon seeing the ox he reversed his engine, shut off the steam, applied the emergency brakes, and sounded the cattle alarm with the whistle; that when he applied the air brakes the speed of the train, in the distance of 100 feet, was slowed down from 30 miles to between 10 and 15 miles an hour; that he could have done nothing else than he did do to prevent striking the animal, and that it was impossible, at the rate of speed at which the train was moving, to have stopped the train before reaching and hitting the animal, and that his fireman at the time was engaged in firing in front of the fire box, and did not and could not have seen the ox from his position.

3. RAILROADS 446 (1)— KILLING STOCK WEATHER CONDITIONS-QUESTION FOR JURY. There was no conflict in the evidence submitted. The plaintiff contends that there were conflicts as to (1) whether the track was straight, and (2) whether the night was foggy. On the first point all the witnesses substantially agreed that the track was straight for a considerable distance up to and at the crossing where the injury occurred, but that just beyond the crossing the track curved. As to the second point, the engineer's testimony that the night was very foggy, at the place where the injury occurred, was undisputed. The mere fact that the plaintiff testified that on that night there was no fog where he lived, which was a mile from the scene of the accident, did not raise an issue of fact on this question.

4. CERTIORARI 69-RAILROADS 443 (1)— KILLING STOCK-NEGLIGENCE-EVIDENCEFINAL JUDGMENT.

Under all the facts of the case the judge of the superior court did not err in sustaining the certiorari and in setting aside the judgment in the justice's court. He was not authorized, however, to render a final judgment in favor of the plaintiff in certiorari. The case should have been remanded for another trial. In so remanding it the judge could have sent with it such instructions as in his discretion the ends of justice required. Holmes v. Pye, 107 Ga. 784, 33 S. E. 816; Atlantic Coast Line Railroad Co. v. Shuman, 121 Ga. 113, 48 S. E. 680; Moore v. Southern Express Co., 9 Ga. App. 487, 71 S. E. 762.

Error from Superior Court, Decatur County; W. M. Harrell, Judge.

Action by Tignor Whiddon against the Atlantic Coast Line Railroad Company. Judgment for defendant in justice's court, and from a judgment of the superior court, on certiorari, setting the judgment aside, and rendering judgment for plaintiff in certiorari, plaintiff brings error. Reversed with direction.

M. E. O'Neal and J. C. Hale, both of Bainbridge, for plaintiff in error. Hartsfield & Conger, of Bainbridge, for defendant in er

ror.

BROYLES, P. J. Judgment reversed, with direction.

BLOODWORTH and HARWELL, JJ.,

Concur.

(21 Ga. App. 510) BRADHAM v. STATE. (No. 9340.) (Court of Appeals of Georgia, Division No. 2. Dec. 19, 1917.)

(Syllabus by the Court.)

1160-APPEAL-VERDICT—

CRIMINAL LAW
APPROVAL BY TRIAL Court.

"In this case the motion for a new trial contained only the usual general grounds. There was some slight evidence authorizing the verdict; and, the verdict having been approved by the trial judge, under the repeated and uniform rulings of this court and of the Supreme Court a reviewing court is powerless to interfere. When the verdict is apparently decidedly against the weight of the evidence, the trial judge has a wide discretion as to granting or refusing a new trial; but whenever there is any evidence, however slight, to support a verdict which has been approved by the trial judge, this court is absolutely without authority to control the judgment of the trial court." Toole v. Jones, 19 Ga. App. 24, 90 S. E. 732; Cook v. McMurria, 19 Ga. App. 491, 91 S. E. 785; McCarty v. Keys, 19 Ga. App. 494, 91 S. E. 875; Phillips-Boyd Publishing Co. v. Bird, 19 Ga. App. 808, 92 S. E. 287.

The judgment rendered in the superior court was as follows: "Upon hearing the within certiorari, it is ordered that the same be and is hereby sustained and the judgment complained of is set aside. It is further ordered that the plaintiff in certiorari recover of Tignor Whiddon $4.80 cost paid by plaintiff in the justice W. Krauss, Judge.

Error from City Court of Brunswick; D.

George Bradham was charged with an of-, fense and from the verdict and judgment he brings error. Affirmed.

Smith, Tillman & Smith and A. J. Crovatt, all of Brunswick, for plaintiff in error. A. D. Gale, Sol. pro tem., of Brunswick, for the State.

BLOODWORTH, J. Judgment affirmed.

4. CARRIERS 380(1), 384(1)—EJECTION_oF PASSENGER-IRRELEVANT ALLEGATIONS-DEMURRER-INSTRUCTIONS.

The action is brought to recover damages from the railway company for the acts of its agents in unlawfully ejecting the plaintiff from one of its passenger trains. The plaintiff alleges, among other things, that while walking from the place of his ejection to the station last passed by the train, through a section of country in which he was a stranger, "he was accosted by a strange white man and notified that no colored person could safely traverse

BROYLES, P. J., and HARWELL, J., that section of the country, and petitioner was

concur.

(21 Ga. App. 367)

MILLER v. SOUTHERN RY. CO. (No. 8790.) (Court of Appeals of Georgia, Division No. 1. Dec. 11, 1917.)

(Syllabus by the Court.)

OF

1. CARRIERS 380(1)—EJECTION
PAS-
SENGER-PETITION-NAME OF TICKET AGENT.
In a suit against a railway company, where
an agent, whose name is not disclosed, is de-
scribed as the company's agent in charge of a
specified ticket office of the company at a speci-
fied time and place, it is error to sustain a spe-
cial demurrer calling for the name of such
agent. The company is presumed to know the
name of the person it employs to perform such
a duty at a particular time and place, while the
public, or a patron of the company, is not pre-
sumed to possess any such knowledge or to
acquire it during the transaction of purchasing
a ticket.
Atlanta Ice & Coal Co. v. Reeves,
136 Ga. 294, 71 S. E. 421, 36 L. R. A. (N. S.)
1112 (3); Bryant v. A. C. L. R. R. Co., 19 Ga.
App. 536, 91 S. E. 1047 (4).
2. CARRIERS 380(1)-EJECTION
-RELEVANCY OF ALLEGATIONS.

PETITION

An allegation, in a suit against a railway company, that the plaintiff was unlawfully ejected from one of the company's passenger trains after being carried five or six miles beyond a designated station, "and was forced o walk back to" such station, is not subject to special demurrer on the ground that "it does not appear why plaintiff was forced to walk hack." Especially is such a demurrer without merit where, as in this case, the petition elsewhere shows that the plaintiff was wholly without money or means of conveyance, and that the train was stopped at such place for the specific purpose of ejecting the plaintiff therefrom.

3. CARRIERS 380(1) EVIDENCE 25
(2) PLEADING 210-EJECTION OF PAS-
SENGER PETITION JUDICIAL NOTICE OF
MUNICIPALITY-"SPEAKING DEMURRER."
A demurrer to the allegation referred to in
the preceding headnote, on the ground that "it
does not appear
* why he did not stay
at Carbondale," is, in this case, a "speaking de-
murrer," for the reason that the petition as a
whole discloses neither the proximity nor the
existence of any such place as "Carbondale,"
and the courts judicially know nothing of it;
there being no such incorporated municipality
in this state. It was therefore error to sus-
tain this ground of the demurrer, even if it
might otherwise have been meritorious.

(a) A "speaking demurrer" is one which alleges some new matter, not disclosed by the pleading against which the demurrer is aimed and not judicially known or legally presumed to be true. Such a demurrer presents no question for decision, and should never be sustained.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Speaking Demurrer.]

forced to hire said white man to escort him through that section, giving him therefor a $5 watch chain." To the allegations here quoted the defendant demurred, on the ground that they "are immaterial and irrelevant, and set forth no element of recovery against the defendant." Held:

(a) Such allegations are by no means essential to the plaintiff's alleged cause of action, and partake more of the nature of evidence than of pleading; but they are nevertheless so closely connected with the transaction in controversy as not to be subject to the criticism that they are wholly irrelevant. Bryant v. A. C. L. R. Co., 19 Ga. App. 536, 91 S. E. 1047 (3).

(b) While such allegations do not contain any element of recovery against the defendant, they are not set forth for any such purpose, and would be subject to demurrer if they were set forth for such purpose, because they are not accompanied by additional allegations to show the defendant's duty to anticipate and prevent the particular injury thereby disclosed.

(c) The allegations in question should not have been stricken upon the particular grounds of demurrer urged; but, upon proof of such allegations, the jury should (upon proper request) be so instructed as not to attach any undue importance to such matter.

5. PLEADING 53(1), 64(2), 244-PETITION -DUPLICITY-COUNTS--AMENDMENT.

The petition in this case contains only one. count, wherein the plaintiff seeks a recovery upon two contradictory versions of the same transaction, namely: (1) That he purchased from the defendant's agent at Chattanooga, Tenn., a ticket to Rome, Ga., and the defendant's conductor wrongfully ejected him from the train at Dalton, falsely claiming that the ticket was to such intermediate station only; (2) that, while he called for and paid for a ticket to Rome, the Chattanooga agent wrongfully furnished a ticket to Dalton only, and he did not discover the error until Dalton was passed, when the conductor so advised him and ejected him from the train for his inability to pay additional fare from Dalton to Rome, notwithstanding he explained to the conductor the kind of ticket he had called for and paid for. Such a petition is clearly duplicitous, and the court properly sustained the demurrer based upon such ground. The plaintiff should have amended, either by preserving the two contradictory versions in two separate and distinct counts, or else by striking one of the alleged versions altogether.

(a) A plaintiff may, in one petition, set out as many contradictory versions of the same transaction as he deems advisable to meet the probable evidence, provided each separate version is set forth in a separate and distinct count, itself constituting a complete cause of action of such a nature that it may properly be joined with the other alleged causes of action, and varies from all the other counts in some material particular. The purpose of the rule is to prevent variance and nonsuit, also to prevent defendants from ofttimes defeating the ends of justice by proving an equally meritorious, though materially different, right of action

in the plaintiff. But a petition which contains | defendant is liable." In the sixth (or last) in one count two such contradictory versions of paragraph of the petition it is alleged: the same transaction is subject to demurrer for duplicity.

"No part of an answer shall be stricken out or rejected on account of being contradictory to another part of the same, but the court shall suffer the whole answer to remain, if the defendant should desire it, and avail himself of any advantage he can or may have under either or the whole of said answer, and proceed to trial accordingly."

the one version which he thinks the evidence | above pointed out, the General Assembly of will tend most strongly to support, thereby this state has, by special enactment, created facing the usual dangers of variance and substantially the same privilege for defendnonsuit, as well as affording his adversary a ants. The act approved December 19, 1818 possible opportunity to point out a fatal vari- (Civil Code, 1910, § 5649), provides: ance between the allegations and the proof -in other words, to defeat the ends of justice by proving one of the equally advantageous, though contradictory, versions not alleged. Owing to other invariable rules of pleading particularly the rules requiring certain matters to be specially pleaded, and the rule requiring that the allegations and the proof shall correspond in all cases, it ofttimes becomes absolutely necessary, in the interest of truth and justice, to allow pleadings which are on their face untrue. It was this experience in the administration of justice that brought about the common-law rule permitting plaintiffs to set out several counts in one declaration; all counts being based upon the same subject-matter of complaint, and each count being in some material particular contradictory of all the others. 1 Chitty, 409 et seq. In theory, each such count must be based upon a separate and distinct transaction; but this theory does not extend to or affect the amount of the plaintiff's recovery-does not, in fact, extend beyond the limit of its absolute necessity-be-er through the ticket agent in delivering to cause, otherwise, such a fiction would work him a wrong ticket, or through the conductor an unjustice, and would never have been in ejecting him after having collected the

tolerated. While the English rule as to

pleading several counts has undergone great changes since May 14, 1776, the General Assembly of Georgia has not seen fit to abolish it in this state; and, under the reviving act of February 25, 1784 (Cobb's Digest, p. 721), a plaintiff in this state may now, as at common law prior to May 14, 1776, embrace in one petition as many contradictory counts based upon the same subject-matter of complaint as he deems advisable, subject only to the general rules as to joinder of actions and to such statutory changes in matters of form as have been enacted by the General Assembly of this state.

While "a petition containing only one count, in which two [contradictory] causes of action are set forth, will. on special demurrer, be held bad for duplicity," yet, "a petition containing several counts, each referring to the same transaction, but differing from each other in substantial particulars as to the details of the transaction, is not bad for duplicity." Gainesville & Dahlonega Elec. Ry. Co. v. Austin. 122 Ga. 823, 50 S. E. 983 (1, 3).

With respect to the wisdom of the rules permitting such double pleading, it is difficult to conceive of a better illustrative case than that disclosed by the petition in the case at bar. According to his petition, the plaintiff was ejected from the train before arriving at the destination to which he had paid his fare; the conductor claiming that the ticket called for passage to an intermediate station only, while the plaintiff had not read the ticket but had relied on the ticket agent to furnish the proper ticket. In such a case, the plaintiff's cause of action did not arise until he was unlawfully ejected from the train; but, in pleading it, he is required to specify wherein the defendant was negligent, wheth

right ticket. From the very nature of the case, the ticket could not have been both right and wrong, and therefore both the ticket agent and the conductor could not have been guilty of the gross negligence here involved; yet the plaintiff may well apprehend that, if he declares upon the negligence of one employé only, the evidence upon the trial will develop a conflict as to which of the two enployés of the defendant was in fact at fault. In other words, if only one of the employés is alleged to have been negligent, the controlling issue under the evidence may be, not as to plaintiff's injury, but as to the cause of the injury; whereas, the injury itself and the plaintiff's right of recovery remain the same, regardless of whether the negligence causing it originated with the ticket agent or with the conductor. In such a case, the law of this state permits the plaintiff so to plead his case that the jury, in passing upon it, will be concerned, not so much with the question as to which employé of the defendant was at fault, but rather with the question as

"While it is permissible to embrace in one petition in different counts as many causes of to whether or not the plaintiff was in fact action as the plaintiff sees proper, provided they are all of a similar nature, still, since the pleading act of 1893, each count must contain a complete cause of action in distinct and orderly paragraphs numbered consecutively; and it is not permissible to make paragraphs of one count a part of another count by mere reference to the same.' Cooper v. Robert Portner Brewing Co., 112 Ga. 894, 38 S. E. 91 (3).

Instead of abolishing the common-law rule which allows a plaintiff to avail himself of

unlawfully ejected from the train through the fault of either of them. Such doubtless was the object of the plaintiff's counsel in setting up in one count the contradictory allegations that render the petition subject to special demurrer for duplicity.

[6] 6. The sixth headnote needs no elaboration. The petition was subject to the demurrer attacking it for duplicity, and it was

plaintiff failed to amend to meet this ground tained in the policy of insurance attached of demurrer.

Judgment affirmed.

WADE, C. J., and JENKINS, J., concur.

(21 Ga. App. 333)

WOOD v. FIRST NAT. FIRE INS. CO. (No. 8614.)

to the petition clearly indicate that the insured liquors were kept by the plaintiff for the purpose of illegal sale, still, in order to make out a violation of the prohibition law of 1907 (Penal Code 1910, § 426), it is wholly unnecessary to show for what purpose the intoxicants were kept at the place of business; the criminal act in such a case being

(Court of Appeals of Georgia, Division No. 1. merely the keeping on hand of such liquors

Dec. 11, 1917.)

Error from City Court of Savannah; Davis Freeman, Judge.

Action by Isadore Wood against the First National Fire Insurance Company. Demurrer to petition sustained, and demurrer to answer overruled, and plaintiff excepts and brings error. Affirmed.

at such a place. Cohen v. State, 7 Ga. App. 5, 65 S. E. 1096 (1). Therefore the only question raised in this case which requires further consideration and discussion is whether the contract of fire insurance covering the liquors so illegally kept was so closely related to the unlawful act as to be a part of that transaction, and therefore void. It is well settled that, where the parties to a contract are in pari delicto, no affirmative relief of any kind will be given to one against the other.

The exact question at issue does not appear ever to have been passed upon by either of the appellate courts of this state. The decisions of other jurisdictions upon the subject are not entirely harmonious, and from them no exact and uniform rule can be adduced. Some of the courts have held On the 13th of August, 1915, the First Na- that a policy of insurance somewhat, but not tional Fire Insurance Company, hereafter altogether, similar to the one here involved, called the defendant, issued to Isadore is not impaired by reason of the fact that Woods, hereafter called the plaintiff, a pol- the property covered by its terms may have icy of insurance for the sum of $4,000 on a been kept for illegal sale. Mechanics' Ins. stock of wines, liquors, beers, cordials, and Co. v. Hoover Distilling Co. (Circuit Court such other merchandise not more hazardous, of Appeals) 182 Fed. 590, 105 C. C. A. 128. "while contained in a brick, metal-roofed 31 L. R. A. (N. S.) 873; Erb v. German-Amerbuilding occupied for mercantile purposes," ican Ins. Co., 98 Iowa, 606, 67 N. W. 583, 40 situated in Savannah, Ga. On the 12th of L. R. A. 845. In many jurisdictions the conNovember, 1915, this building, together with trary rule has been adopted. Kelly v. Home the liquors, were destroyed by fire. The and Croton Ins. Cos., 97 Mass. 288; Lawplaintiff duly presented proofs of loss, but rence v. National Fire Ins. Co., 127 Mass. the defendant denied liability; and there- 557, note; Johnson v. Union Ins. Co., 127 upon the plaintiff brought this action. The Mass. 555; Carrigan v. Lycoming Fire Ins. defendant demurred to the petition, upon Co., 53 Vt. 418, 38 Am. Rep. 687; 19 Cyc. the ground that the contract of insurance 626, § 3; Wheeler v. Mutual Reserve Fund entered into by it was null and void as Life Ass'n, 102 Ill. App. 48. In Mechanics' against the public policy of the state. The Realty, etc., Co. v. Leva, 16 Ga. App. 7, 84 court sustained this demurrer, and excep- S. E. 222 (2), this court said: tion was duly taken by the plaintiff. The "An obligation supported by an independent defendant also filed an answer in which it set up the illegality of the contract. This answer was demurred to by the plaintiff, and the demurrer overruled, to which ruling the plaintiff excepted. The court permitted the case to proceed because of the insurance upon certain musical instruments consisting of two electric pianos and one electric harp, for which the plaintiff recovered; but as to this recovery there is no exception.

Osborne, Lawrence & Abrahams, of Savannah, for plaintiff in error. Anderson, Cann, Cann & Walsh, of Savannah, for de fendant in error.

JENKINS, J. (after stating the foregoing facts). While we think the stipulations con

consideration will be enforced, though indirect-
ly connected with an illegal transaction, where
gal transaction to make out his case."
the plaintiff does not require the aid of the ille-

In this case the early opinion by the Supreme Court of the United States in Armstrong v. Toler, 11 Wheat. 258, 6 L. Ed. 468. rendered by Chief Justice Marshall, is quoted, as follows:

"Where a contract grows immediately out of, and is connected with, an illegal or immoral act, a court of justice will not lend its aid to enforce it. But if the promise be entirely disconnected with the illegal act, and is founded on a new consideration, it is not affected by the act, although it was known to the party to whom the promise was made, and although he was the contriver and conductor of the illegal act."