15 S.E.2d 246 | Ga. Ct. App. | 1941
The court erred in sustaining the demurrer to the petition as amended.
The defendant demurred as follows: "(1st) That said petition fails to set forth a cause of action, against defendant. (2nd) Said petition shows on its face that it seeks to recover damages, both for a breach of contract and for a tort. (3rd) The petition shows on its face that the proximate cause of the injury was the independent criminal act of a third person. (4th) The petition shows on its face that there is a nonjoinder of parties defendant in said case, in *70 that said petition shows that the injury complained of was the direct result of the negligent acts of a third person, and such third person is not named as a defendant in said petition, nor is any reason set forth why such third person is not named as a defendant. (5th) Said petition shows upon its face that the injury complained of was not the result of any negligent act of the defendant, but the proximate cause of such injury was the independent act of a third person. (6th) Said petition fails to allege sufficient facts to show that the transaction between plaintiffs and defendant was a loan, as alleged in said petition, in that said petition fails to set forth the time for which said loan was to continue. Said petition also fails to allege whether the terms of said alleged loan were oral or in writing, nor is a copy of said loan agreement set forth in said petition, or attached thereto. (7) Defendant demurs to the allegation in paragraph nine of said petition, to wit: `That the defendant was bound to exercise extraordinary care and diligence in the preservation of the property,' for the reason that said allegation is a conclusion of law, and should be stricken from said petition. Defendant demurs further to the allegations in paragraph nine (b) of said petition for the reason that said allegations set forth conclusions of the pleader, without setting forth sufficient facts to justify such conclusions, in that said paragraph fails to allege how the mule was attached to the wagon, or how the failure to have lights or reflectors on said wagon constituted gross negligence, or how the failure to have such lights or reflectors on said wagon in any way contributed to the injury complained of. Defendant demurs to the allegations in paragraph 9 (c) of said petition, for the reason that said paragraph does not allege how or in what manner the allegation `that said mule was being used by the defendant at the time for a purpose different from the purpose for which the mule was loaned to the defendant,' constituted gross negligence." The usual prayer for dismissal was asked.
The plaintiffs amended the petition, and alleged: "(1) That the time for which said loan of said mule was to continue was for only the period during the year 1939, necessary to use said mule in connection with the working, making, and harvesting the crops on the farms personally operated by defendant. (2) That the terms of said loan of said mule were oral and not in writing. (3) That under said contract of bailment the defendant was to take *71 good care of the mule, was to return the same identical mule at the end of the farming season of the year 1939, was to return said mule in a good and proper condition, and was to use said mule only for the purposes herein stated in the petition. (4) That the defendant has breached the contract of bailment in the following, to wit: (a) That said mule can not be returned in a good and proper condition at the time specified in the contract, for the reason that said mule was killed on October 5th, 1939, while in the possession, custody, and control of the defendant. (b) That the defendant was not authorized under the contract of bailment to use said mule to assist in picking the peanuts of the public at large, on farms not personally operated by defendant, nor as incident thereto, to use said mule attached to a wagon, driven at night, on a public highway without any lights or reflectors. (c) That the defendant did not take good care of the mule, for the reason, that he did not use proper care and diligence in the preservation of the mule, in that he was operating said wagon with the mule attached thereto, upon a public highway, at night, with no lights or no reflectors attached either to the front or the rear of the wagon, as required by law. (d) That the defendant did not take good care of the mule for the reason that he did not use proper care and diligence in the preservation of the mule, in that he had said mule tied behind the wagon that was being driven on a public highway, at night, where passing autos, trucks, and cars, were likely to frighten said mule, causing said mule to jump in front of, or be struck by an auto, truck or car. (e) That defendant did not take good care of the mule for the reason that he did not use proper care and diligence in the preservation of the mule, in that he had said mule tied behind a wagon that was being driven on a public highway at night, where in such a position said mule was likely to be struck or hit by a passing auto, truck or car. (5) Petitioners strike the entire paragraphs numbered 9 and 10 of the original petition. (6) That the defendant's breach of the contract of bailment, for the reasons as aforesaid stated, has damaged your petitioners in the amount of $217.50. That the value of said mule before and at the time it was killed was $217.50, and that after said mule was killed it was of no value whatsoever. (7) That this action is definitely stated to be an action for the breach of the contract of bailment by defendant, and for the purpose of recovering damages occasioned by *72 said breach of said contract. Wherefore, petitioners pray: (1) Judgment in the amount of $217.50, as damages for the breach of the contract of bailment by the defendant. (2) That this amendment be allowed."
The defendant demurred to the petition as amended, as follows: "(1st) Defendant renews grounds 1, 3, 4, and 5 of his original demurrer to plaintiffs' petition as amended. (2nd) Defendant demurs further to plaintiffs' petition as amended for the reason that the amendment seeks to change a cause of action sounding in tort to a cause of action for a breach of contract. (3rd) Defendant demurs further to the petition as amended for the reason that the same sets forth no cause of action for a breach of contract, the petition showing on its face that the damages sought to be recovered resulted directly from an independent criminal act of a third person, and did not result from the failure or neglect of the defendant to perform the contract as set out in said petition. (4th) Defendant demurs further to plaintiffs' petition as amended for the reason that it is not alleged what hours of the day defendant was to use said mule under the contract of loan, nor in what capacity defendant was to use said mule, nor how the failure to have the wagon to which said mule was attached equipped with reflectors in any way contributed to the death of the mule, said petition showing that said mule was killed by a truck which was being operated without any lights. (5th) Defendant demurs further to plaintiffs' petition as amended for the reason that the allegation, to wit: `that the defendant did not take good care of the mule for the reason that he did not use proper care and diligence in the preservation of the mule,' used in paragraph 4, c, d, and e, of plaintiffs' amended petition, sets forth a conclusion of the pleader, without setting forth sufficient facts upon which to base such conclusion, it not being shown or alleged in said petition how the failure to have the wagon to which said mule was attached equipped with reflectors in any way contributed to the death of the mule, nor does said petition allege what kind of good care or what care and diligence the defendant was required to use in the preservation of said mule under the said alleged contract of loan. Wherefore, defendant prays that this his demurrer be sustained and that plaintiffs' petition be dismissed."
The questions presented are, first, does the original petition partake *73
both of a cause of action ex contractu and one ex delicto; second, does the amendment transform the action into one ex contractu; third, does the petition as amended set out a cause of action? The petition speaks for itself regarding the facts and the conclusions therefrom. In his first demurrer the defendant construed the petition as sounding both for breach of contract and in tort; the second paragraph of the demurrer related that "said petition shows on its face that it seeks to recover damages, both for a breach of contract and for a tort." The defendant called into question the ambiguity of the petition, and thus himself construed it. He is thus bound by his construction. In Jenkins v. Seaboard Air-Line Railway,
We think the petition as amended sets out a cause of action for breach of contract of bailment for the sole benefit of the bailee. It is true there are certain unnecessary allegations as to negligence and conduct with reference to the property bailed in dealing with it beyond the purpose for which it was bailed and outside of the contract of bailment. These may be treated as surplusage, and are not fatal to the petition. The amended petition is for a breach of contract of bailment for the sole benefit of the bailee. This is a loan bailment, and is governed by the principles of law relating to bailments of this type. "A loan for use is the gratuitous grant of an article to another for use, to be returned in specie, and may be either for a certain time or indefinitely, and at the will of the grantor." Code, § 12-502. "The loan must be used strictly for the purpose and in the manner contemplated by the parties. A violation by the borrower is, in law, a conversion." § 12-510. "When one hires a horse to go a certain distance, he has no right, under his contract, to go beyond such distance without the consent of the bailor; and when he does go beyond, it is at least a technical conversion or violation of his contract and duty, and if the horse be injured while beyond the point to which it was hired to go, he is liable, whether the injury be caused by his own negligence or that of others, or even by accident, unless he be forced to go beyond that point by circumstances which he can not control." Farkas v. Powell,
The demurrers above considered raise the questions that the plaintiffs should not recover because the petition shows that (1) the damages sought to be recovered resulted directly from an independent criminal act of a third person, and did not result from a failure or neglect of the defendant to perform the contract as set out in said petition, and (2) because of the principles announced in Code, § 20-1407. As to the first of these questions the defendant cites Andrews v. Kinsel,
The second question raised by the defendant is to the effect that the damages sought to be recovered are excluded by the law announced in the Code, § 20-1407, supra. To sustain this contention the defendant relies on Fain v. Wilkerson,
Judgment reversed. Broyles, C. J., and MacIntyre, J.,concur.