Lamb v. Howard

| Ga. | Sep 21, 1916

Beck, J.

(After stating the foregoing facts.) We are of the opinion that this was clearly an action ex delicto. As will be seen by reading the original petition, the plaintiff alleges' that the' defendant railroad company unlawfully delivered the property in controversy, not to the plaintiff or his order, but' to a certain corporation known as the Senoia Duck Mills, and that this delivery without an order from the plaintiff and without his consent was an unlawful conversion by the carrier of the property of the plaintiff; that this property, the machinery shipped; which-was unlawfully delivered to the Duck Mills 'and -thus converted by the carrier, was of the value of $44,663; and plaintiff asks judgment for this amount as the value of the. property at the time of the alleged unlawful conversion, with interest thereon from the date of the conversion. Thus in apt phraseology the pleader stated a complete cause of action ex delicto. That being true, it was not competent by an amendment to change the action into one arising ex contractu, and objection to the amendment based upon the ground that by the amendment the plaintiff sought to set up a new cause of action should have been sustained. Sharpe v. Columbus Iron Works, 136 Ga. 483 (71 S.E. 787" court="Ga." date_filed="1911-07-13" href="https://app.midpage.ai/document/englehart-hitchcock-co-v-central-investment-co-5577951?utm_source=webapp" opinion_id="5577951">71 S. E. 787) ; Gilleland v. Louisville &c. R. Co., 119 Ga. 789 (47 S.E. 336" court="Ga." date_filed="1904-03-29" href="https://app.midpage.ai/document/gilleland--dillingham-v-louisville--nashville-railroad-5573222?utm_source=webapp" opinion_id="5573222">47 S. E. 336); Cox v. R. & D. Railroad Co., 87 Ga. 747 (13 S.E. 827" court="Ga." date_filed="1891-10-19" href="https://app.midpage.ai/document/cox-v-richmond--danville-railroad-5564340?utm_source=webapp" opinion_id="5564340">13 S. E. 827). The amendment tendered in this case, which is set forth in the statement of facts, being one seeking to change the 'cause of action from one ex delicto to one ex contractu, and that not being allowable, the court should have sustained the demurrer to the amendment and also the general demurrer to the petition as amended, the amendment having been allowed subject to demurrer. . .

The action here brought is of such a character that the courts of the county in which the injury complained of was done by the defendant alone had jurisdiction of the suit to recover damages for the wrong done. In section 2798 of the Code of 1910 it is provided that “All railroad companies shall be sued in the county-in which the cause of action originated, by any one whose person or property has been injured by such railroad company, its officers, agents, or employees, for the purpose of recovering damages for such injuries;” and we are of the opinion that the petition in this case declares upon such an injury to personal property as gave to the court of Coweta County jurisdiction of the suit against the defendant railroad company, and the suit could be brought in that county, and no other, under the provisions of the code section last referred to. The defendant in error insists that if the suit as filed is one ex delicto, it is not to recover damages for injury to property. To this contention we can not assent. We are of the opinion that the unlawful conversion of property is an injury to the property within the meaning of those terms as employed in the code section fixing venue of suits in certain cases against railroad companies. Civil Code, § 2798. We have not overlooked the decisions in the case of Blocker v. Boswell, 109 Ga. 230 (34 S.E. 289" court="Ga." date_filed="1899-10-27" href="https://app.midpage.ai/document/harrell-v-state-5569722?utm_source=webapp" opinion_id="5569722">34 S. E. 289), and the cases upon which that case was based, where it is said that a conversion of personal property could not be called an injury to property. But in these cases the court was dealing with the meaning of those words in the portion of the constitution fixing the jurisdiction of justices’ courts. Here we are dealing with the expression “injury to property” in its broad and general sense; and that, according to the general and uniform interpretation of those terms, is broad enough to comprehend a wrongful conversion of property. Crawford v. Crawford, 134 Ga. 114 (67 S.E. 673" court="Ga." date_filed="1910-02-23" href="https://app.midpage.ai/document/crawford-v-crawford-5577125?utm_source=webapp" opinion_id="5577125">67 S. E. 673, 28 L. R. A. (N. S.) 353, 19 Ann. Cas. 932), and citations; Broom’s Com. Law (9th ed.), 782; 3 Bl. Com. 152. Consequently the petition in this ease shows upon its face that the courts of Coweta County alone had jurisdiction of this suit, and that the superior court of Eulton County did not have jurisdiction. And this appearing upon the face of the petition, it should have been dismissed upon general demurrer.

Judgment reversed.

All the Justices concur, except Gilbert, J., not presiding.