Opinion
33855.
DECIDED FEBRUARY 28, 1952.
Complaint; from Bibb Superior Court — Judge Anderson. September 12, 1951.
Jesse W. Bush, for plaintiff.
J. H. Napier, for defendant.
As the amended petition did not allege the terms and conditions of the alleged lease out of which the alleged bailment arose and did not allege what agent entered into the lease agreement on behalf of the plaintiff, the court did not err in sustaining the renewed demurrers pointing out these defects, and in dismissing the action.
DECIDED FEBRUARY 28, 1952.
Davis Truck Lines Incorporated sued Central Truck Lines Incorporated for alleged damage to bailed personal property. The petition alleged in substance: that, on or about December 26, 1949, the plaintiff leased for use by the defendant one LowBoy Trailermobile of 25-ton capacity having a value of $2000; that, while being used by the defendant, said trailer was almost completely destroyed by fire, and it was returned to the plaintiff in a practically useless condition; that, at the time the trailer was destroyed, it was being used by the defendant and was in its possession and control; that the trailer had the value of $500 when returned to the plaintiff. The defendant demurred generally and specially to the petition. The grounds of the special demurrer were as follows: "(a) The terms of the alleged lease contract are not set forth. (b) It is not alleged by whom said lease was executed on behalf of the petitioner and the defendant. (c) The Low-Boy Trailermobile is not sufficiently identified. (d) The ownership of the said Trailermobile is not shown." At the hearing on the demurrers the court deferred action thereon to allow counsel to submit briefs and "to permit the plaintiff to amend his petition to meet . . objections raised by the defendant's demurrer." Before another hearing the plaintiff amended its petition substantially as follows: that the plaintiff turned over the trailermobile to the defendant under a verbal agreement whereby the defendant would use the trailer to haul a cargo from Tampa, Florida, to Marietta, Georgia, after which it would be returned to the plaintiff; that, by virtue of the oral agreement, the defendant became, as a matter of law, a bailee for hire and owed the plaintiff a duty to exercise ordinary care for the safety and preservation of the trailermobile; that, while in the independent and exclusive possession of the defendant, said trailer was almost completely destroyed by fire; that the loss resulted from the carelessness and negligence of the defendant, who did not exercise ordinary care for its protection and safekeeping; that the trailermobile was damaged by fire in a manner unknown to the plaintiff but known to the defendant; that the lease agreement was entered into on behalf of the defendant by O. P. Grantham acting as agent of the defendant within the scope of his authority. The defendant renewed its general and special demurrers to the amended petition. The court sustained the demurrers and dismissed the action, and the plaintiff excepts.
We will consider only grounds (a) and (b) of the special demurrer which was renewed to the amended petition. Ground (a) complained that the terms of the alleged lease agreement between the plaintiff and the defendant concerning the trailer were not set forth in the amended petition. While the plaintiff denominated its action as one in tort and not one on the oral agreement, it nevertheless based its right to bring the tort action upon the oral lease agreement, in that it relied on such agreement to show a bailor-bailee relationship between it and the defendant. Therefore, the lease agreement being an integral part of the alleged cause of action, the defendant was entitled to be informed as to the terms and conditions of such lease agreement, especially since the alleged agreement was oral. Southern Express Co. v. Cowan, 12 Ga. App. 318 ( 77 S.E. 208). Ground (b) of the renewed special demurrer complained that the amended petition did not allege by whom the alleged lease was executed on behalf of the plaintiff and the defendant. The amendment to the petition alleged that the lease agreement was entered into on behalf of the defendant by O. P. Grantham, acting as the defendant's agent and within his scope of authority, but it did not allege what agent acted on behalf of the plaintiff. The defendant was entitled to this information if its absence was pointed out by special demurrer. Cherokee Mills v. Gate City Cotton Mills, 122 Ga. 268, 272 (2) ( 50 S.E. 82).
Since the defendant was allowed to amend to meet the objections raised by the special demurrer, and since the amendment did not meet the objections raised thereby, the court did not err in sustaining grounds (a) and (b) thereof, and in dismissing the action.
Judgment affirmed. Sutton, C. J., and Worrill, J., concur.