Under the binding stipulation of the parties the this case, that the pilferage of the shipment in question occurred in New York City and before it was transferred by the Pennsylvania Railroad to the Southern Railway Company, and the undisputed legal aliunde evidence of probative value and the law applicable thereto, a judgment in favor of the plaintiff was demanded, and the judgment for the defendant was contrary to law and the evidence.
DECIDED JULY 16, 1942. REHEARING DENIED JULY 30, 1942. Upon the first appearance of this case in this court (65 Ga. App. 647, 16 S.E.2d 62), we held that the Southern Railway Company was liable to Acme as a matter of law in the amount of the previous recovery by Saul against Acme, because that suit (where the Southern was vouched into court by Acme) adjudicated against the Southern not only the question of Acme's liability to Saul and the amount thereof but the additional question of the Southern's liability to Acme. Upon certiorari, the Supreme Court held that the ruling was erroneous, and reversed the judgment *Page 886 of this court, "without any determination being made by this court [the Supreme Court] as to the additional question whether the aliunde proof of record in this case did or did not demand a finding that the Southern as delivering carrier was liable to Acme under the Hepburn act and the subsequent amendments thereto. 49 U.S.C.A. § 20, par. 11. That question, not having been passed upon by the Court of Appeals, remains open for determination by that court under the exceptions to the refusal of a new trial, brought to that court. The remaining question, which the adjudication by this court now makes it necessary for the Court of Appeals to determine, is whether or not from the aliunde proof a holding by it is demanded that the trial judge erred in finding in effect that Acme had failed to show that the loss occurred subsequently to the delivery of the goods by Acme to the Pennsylvania Railroad as initial carrier." SouthernRailway Co. v. Acme Fast Freight Inc., 193 Ga. 598, 602 (19 S.E.2d, 286).
In our opinion the undisputed aliunde proof demanded a finding that the pilferage of the shipment occurred after its delivery to the Pennsylvania Railroad in New York City. The contention of the Southern Railway Company, that Acme carried the shipment to the Pennsylvania Railroad on October 21, 1937, and had it weighed, and then carried it to a garage in New York City where it was stored that night, and that on the following day (October 22, 1937) Acme delivered it to the Pennsylvania Railroad, and that the shipment was probably pilfered while it was stored in the garage on the night of October 21, 1937, is not supported by any evidence of probative value. The only evidence tending to support the contention was contained in a letter, written to Acme on September 16, 1940, by the defendant's general freight claim agent, in which he stated: "The fact has been established that the two cartons of clothing in question were received from the shipper about 1:00 p. m., October 21, 1937, no weight being designated. The weighing was done at the 37th Street Station of the Pennsylvania R. R. and, as I have already pointed out, the two cartons weighed 164 pounds. The truck containing the shipment was stored overnight of October 21, 1937, in the West 20th Street garage at 124 West 20th Street. New York, delivery being made the next day to the P. R. R., and these two packages were in apparent good order with no visible evidence of having been tempered with." This letter *Page 887 shows on its face that the writer knew nothing personally about the matter, but was merely stating what had been "established by the police departments of the Pennsylvania R. R. and Southern Railway in New York," as specifically stated in his letter.
This evidence was pure hearsay, and it is admitted to be such in the brief of counsel for the Southern. However, counsel argue that since the hearsay evidence was admitted without objection it became valid evidence and could be considered by the jury. The only case cited to support the argument is Georgia Coast c. R.Co. v. Herrington, 14 Ga. App. 539 (81 S.E. 814). That case is not here applicable since the evidence there under consideration was secondary evidence and not hearsay evidence. As said by this court in Rushin v. State, 63 Ga. App. 646 (11 S.E.2d 844), "There is a distinction between illegal testimony and secondary evidence. Hearsay testimony (illegal testimony) has no probative force whatever, and its only effect is to prejudice the minds of the jury against the party against whom such hearsay evidence is introduced. The only objection to secondary evidence is that it is received without first laying the preliminary foundation. Such evidence stands on a different footing, and if admitted without objection it is nevertheless competent." Under numerous decisions of the Supreme Court and of this court, hearsay evidence is wholly without probative value,and its introduction without objection does not give it any weight or force whatever in establishing facts. MichiganInsurance Co. v. Parker, 10 Ga. App. 697 (73 S.E. 1096);Rabun v. Commercial Bank, 21 Ga. App. 43 (93 S.E. 524);Brooks v. Pitts, 24 Ga. App. 386 (100 S.E. 776); Hale v.Hale, 28 Ga. App. 509 (2) (111 S.E. 740); Slater v.State, 44 Ga. App. 295 (161 S.E. 271); Spencer v.Wright, 48 Ga. App. 126 (172 S.E. 91); Jones v. State,50 Ga. App. 97 (176 S.E. 896); Earle v. Barrett, 51 Ga. App. 514,515 (180 S.E. 855); Higgins v. Trentham,186 Ga. 264 (197 S.E. 862), and cit.
Under the foregoing decisions, the above-referred to hearsay evidence, although admitted without objection, was without any probative value whatever to establish any fact, and should be and is eliminated by this court in its consideration of the evidence adduced. With that evidence eliminated, the undisputed testimony and the bill of lading show the following facts: On October 22, 1937, the shipment was delivered by Acme in apparent good order *Page 888 to the Pennsylvania Railroad in New York City. When so delivered it weighed 164 pounds and a receipt for it was given Acme by the railroad. When the shipment reached Atlanta it weighed only 139 pounds. There is not a scintilla of legal evidence to establish that the shipment was stored in a garage overnight after it had been weighed by the Pennsylvania Railroad at one of its stations. On the contrary, the undisputed evidence (undisputed except by the illegal hearsay evidence) showed that the shipment was delivered to, weighed by, receipted for, and retained by, that railroad on October 22, 1937, and that the shipment was never in Acme's possession after it was weighed by the Pennsylvania Railroad. The controlling question before this court is whether the pilferage occurred before or after the shipment was delivered to the Pennsylvania Railroad. Under the undisputed probative evidence in the case, and the binding stipulation of the parties that the pilferage of the shipment occurred in New York City and before it was transferred by the Pennsylvania Railroad to the Southern Railway Company, the only possible logical answer is that the shipment was pilfered while in the possession of the Pennsylvania Railroad. This being true, the Southern Railway Company was liable to Acme. We think the evidence demanded a judgment in favor of Acme, and that the judgment rendered for the Southern was contrary to law and the evidence.
Judgment reversed. MacIntyre and Gardner, JJ., concur.
ON MOTION FOR REHEARING.