112 Ga. 894 | Ga. | 1901
Cooper sued Sheehan and the Brewing Company, his petition containing three counts. It was alleged in the first count •that he was employed by the defendants to open and close their brewery, for which he was to be paid the sum of two dollars per week, and to sell them beer at a commission of fifteen cents a case of quarts and. ten cents a case of pints, the beer to be delivered by petitioner to customers in the city of- Augusta from a delivery-wagon. The delivery-wagon, horse, harness, and outfit were to be furnished by defendants, properly equipped and ready for use. The beer was delivered to petitioner, and he had to account for the same by making either a report of sales or a return of the beer. He had no duty in regard to the use of the wagon, horse, and harness, except to use the same to make deliveries. After he had been in the employ of the defendants for some time, he was' notified that he was to change horses and drive separately to the wagon, one horse in the morning and the other in the afternoon, a pair of horses which had been previously used as a team. As the horses when driven together either ran away or tried to run away, it was proposed by the defendants that they should be separated and driven single, when the disposition to run away might be corrected. Accordingly, petitioner was ordered to drive these horses separate to the delivery-wagon. He objected to this, but was as
In the second count of the petition the facts alleged are substantially as above set forth, and in addition thereto it is charged that the defendants were under a continuing duty to furnish and keep in repaii’ good, substantial harness, and that this duty was all the more imperative because of the character of the horse furnished by them, and that, notwithstanding this duty, they utterly faile'd to furnish a good harness with which to drive the horse, and knowingly furnished inferior harness, which they well knew was worn and out of
The judge sustained a general demurrer to the petition, and the plaintiff in his bill of exceptions assigns this as error.
The first count in the petition was framed in substantial compliance with the pleading act of 1893 (Civil Code, § 4961). The cause of action therein embraced was set forth in orderly and distinct paragraphs numbered consecutively, so that the motion to dismiss was not well taken as to this count. The second and third counts were not in compliance with the pleading act. While it is permissible for the plaintiff to embrace in his petition as many different counts as he may see proper, provided all of the counts set forth causes of action of a similar nature, that is, all'ex delicto or all ex contractu, each count must set forth a perfect cause of action. One count can not be added to by reference to parts of another count, hut each count must be embraced in distinct and orderly paragraphs numbered consecutively. It was, therefore, not permissible for the plaintiff to make a part of the second count paragraphs of the first count by a mere reference thereto; and this defect was not cured by an amendment which simply left the second and third counts in the same condition they were before, except that the eleven paragraphs of the first count were attempted to be embodied by consecutive numbers, instead of by one paragraph, adopting the whole eleven. The motion to dismiss should have been sustained as to the second and third counts, unless these counts were amended so as to set forth a complete cause of action in each, in distinct and orderly paragraphs numbered consecutively, and not referring to the other count in any way for the purpose of making paragraphs of the same a part of the second and third counts by adoption or reference. See 4 Enc. P. & P. 620 (3); Bliss, Code Pl. (3d ed.) § 121. While Hutson v. King, 95 Ga. 272 (4), 277, was decided after the passage of the pleading act of 1893, the case originated prior to the passage of that act, the declaration having been filed in office on the 17th day of October, 1893, and the pleading act having been approved on the 15th day of December, 1893. See Acts 1893,p. 56.
Judgment on each bill of exceptions reversed.