Opinion
38931.
DECIDED JUNE 28, 1961. REHEARING DENIED JULY 11, 1961.
Trover. Fulton Civil Court. Before Judge Camp.
Harris Bullock, Carl T. Hudgins, for plaintiff in error.
A. David Kahn, James W. Dorsey, contra.
1. The original petition in this case, being an action in trover, when considered as amended by the allegations of the defendant's answer which were admitted by replication filed by the plaintiff, stated a cause of action as against the general demurrer.
2. ( a) Grounds of special demurrer which sought to require the plaintiff to itemize its damages should have been sustained.
( b) Allegations as to dates shown to be particularly within the knowledge of the defendant need not be alleged with definiteness, especially where plaintiff alleges that such information is unknown to it.
3. Under the circumstances of this case, the court did not err in refusing to declare plaintiff in default for its failure to answer defendant's request for admissions.
DECIDED JUNE 28, 1961 — REHEARING DENIED JULY 11, 1961.
Southland Ice Co. sued Hudgins Co., Inc., in the Civil Court of Fulton County in trover. The petition alleged that the plaintiff was the owner of certain enumerated items of personal property which, collectively, had a market value of $13,988; that said property was located in a certain building which had been acquired by condemnation proceedings by the City of Atlanta; that between the dates of September 24 and October 14, 1959, defendant entered the premises and demolished the building, and in the process of demolition, took, demolished and converted the property of the plaintiff located therein; that plaintiff has demanded the property, but defendant has failed and refused to deliver the same or to reimburse plaintiff therefor. To the original petition defendant filed general and special demurrers and an answer in which it denied the allegations of plaintiff's petition and set up that the articles sued for were not items of personal property but were attached to the realty described in the petition and had been acquired by the City of Atlanta by condemnation. By amendment to that answer defendant added allegations of the following facts, among others: that the City of Atlanta, on June 12, 1959, filed a condemnation proceeding against plaintiff seeking to condemn a tract of land described in the petition by metes and bounds; that on August 10, 1959, the court entered a judgment and decree condemning the property in fee simple; that the real estate described in the condemnation suit was improved, having thereon a building owned by plaintiff; that said building was constructed for the purpose of manufacturing ice and was so used for many years prior to the condemnation proceeding; that the articles described in plaintiffs petition were designed for use in manufacturing and handling of ice as a commercial enterprise and were so used by plaintiff; and, that the tract of land described in the condemnation suit was the entire tract of land owned by plaintiff at and immediately surrounding the ice manufacturing plant. A copy of the condemnation suit and decree entered therein were attached as exhibits to this amendment. This amendment was filed on July 8, 1960. Concurrently with the filing of the amendment, defendant filed a motion to require plaintiff to replead and answer the allegations made in the amendment to its answer. The court issued a rule nisi on this latter motion and thereafter entered an order requiring plaintiff to reply to the paragraphs of defendant's amendment of July 8th. Plaintiff filed a replication in which he simply admitted the allegations of fact set forth above and denied the other allegations contained in defendant's amendment to its answer. Thereafter defendant renewed its demurrers to plaintiffs original petition and to the petition as amended and as affected by the replication.
1. While the procedure followed in this case is somewhat unusual, the trial judge, nevertheless, had a discretion as to whether he would grant the defendant's motion to require the plaintiff to replead. Johnson v. Georgia Fertilizer c. Co., 21 Ga. App. 530 (5) ( 94 S.E. 850). There being no objection to the order requiring the replication, the petition will be treated for the purposes of decision on demurrer as having been amended by the addition thereto of the allegations of defendant's answer which were admitted by the replication. As so amended, it does not affirmatively show that the items of property sued for were not personalty. The court does not judicially know that articles used in manufacturing and handling ice as a commercial enterprise are of such character as to constitute a part of the realty when installed in a building. Whether this is so is a question of fact and no facts are set forth in the original petition nor in the admitted portions of defendant's answer which would demand this conclusion. The petition sets out a description of the property referred to as personality, its value, title in the plaintiff, possession in the defendant, and a refusal by the defendant to deliver it to the plaintiff on demand. Such allegations are sufficient as against a general demurrer. Bank of Sparta v. Butts, 1 Ga. App. 771 (1) ( 57 S.E. 1061).
2. The items sued for in the petition were: "A 50-ton ice freezing tank, a complete coil assembly with connections to liquid accumulator, an accumulator with connections, and ice can grids appurtenant thereto." These items were alleged to have a market value of $13,988. By timely special demurrer defendant attacked the allegations as being too indefinite and uncertain with respect to the kinds and quantities of articles specified because no separate value was alleged for each article and because it did not appear what the coil assembly consisted of, nor what the liquid accumulator and connections consisted of, nor how many ice can grids were claimed. These grounds of special demurrer should have been sustained and plaintiff required to allege this essential information. Defendant is entitled to have the damages claimed by plaintiff in a lump sum itemized when it appears from the petition that such lump sum damages are made up of separate and distinct items. McKenzie v. Mitchell, 123 Ga. 72 (2) ( 51 S.E. 34); Montezuma Live Stock Co. v. Dover, 28 Ga. App. 392 (4) ( 111 S.E. 441); De Golian v. Faulkner, 74 Ga. App. 870 ( 41 S.E.2d 664).
Ground 4 of defendant's original demurrer sought to require plaintiff to allege the date, or dates, on which the building referred to in the petition was demolished by the defendant. Plaintiff alleged that this was done at a time unknown to the plaintiff but well known to defendant, and between the dates of September 24, 1959, and October 14, 1959. This was a sufficiently definite allegation of the date, or dates, on which defendant demolished the building, especially so since plaintiff alleged in connection therewith that such date was unknown to it.
3. Defendant filed and served on plaintiff a request that plaintiff admit certain facts. Plaintiff failed to file an answer to the request, but within 10 days of the date of the filing of such request filed "Objections to Request for Admissions." In this pleading certain paragraphs of the request were objected to on various grounds, but other paragraphs were neither objected to nor admitted nor denied. Thereafter defendant made a motion to declare plaintiff in default with respect to the request for admissions and this motion was overruled and is excepted to. This latter motion did not invoke any ruling as to the merits of plaintiff's objections to the other paragraphs of the request.
Under the provisions of Sec. 1 of the act approved February 25, 1953 (Ga. L. 1953, Jan.-Feb. Sess., p. 224; Code Ann. § 81-1011), the paragraphs of the request for admissions to which plaintiff made no objection, the same not having been otherwise answered within the time designated therein, stood admitted. No order of court declaring this to be so was necessary. With respect to the paragraphs of the request deemed to have been admitted, it is sufficient to say that under the ruling made in division 1 of this opinion the facts thus admitted do not require a different result. The allegation contained in paragraph 11 of the request that the articles sued for were fixtures installed in the building is a legal conclusion dependent upon proof of all the surrounding facts and circumstances, and plaintiff will not be deemed to have made an admission of this by his mere failure to answer the request, in the absence of a showing as to what the surrounding facts and circumstances were. Accordingly, it was not error for the trial court to overrule defendant's motion made with respect to its request for admissions.
As ruled in division 2 above, the refusal of the trial judge to sustain the special demurrer attacking the sufficiency of the allegations of plaintiffs petition as to the items of property claimed to have been converted by defendant and as to the value thereof was error. This ruling will not, however, require a reversal of the case unless plaintiff shall refuse to amend its petition to meet this ground of demurrer. Accordingly, the judgment is affirmed on condition that plaintiff amend so as to cure the defects in its petition as pointed out by ground 2 of defendant's original demurrer. De Golian v. Faulkner, 74 Ga. App. 870, supra.
Judgment affirmed on condition. Nichols and Eberhardt, JJ., concur.