Opinion
37104.
DECIDED APRIL 17, 1958.
Breach of contract. Augusta Municipal Court. Before Judge Cooper. January 30, 1958.
Jay M. Sawilowsky, for plaintiff in error.
William C. Reed, Fulcher, Fulcher, Hagler Harper, contra.
The judge did not err in sustaining the general demurrer to the petition.
DECIDED APRIL 17, 1958.
Franklin Driggers filed an action against the Atlanta Gas Light Company for breach of contract.
The petition alleged in part that: on September 16, 1956, an agent and servant of defendant, unknown to the plaintiff, but well known to the defendant, while operating a vehicle belonging to the defendant in the prosecution of the defendant's business, and within the scope of his employment with the defendant, negligently ran over the plaintiff's bulldog, severely injuring it; when informed of the accident and injury to his dog, the plaintiff believed in good faith that he had a good cause of action against the defendant for the injury to his dog; that the defendant, by and through its aforesaid servant and agent, then represented to the plaintiff that he should have the animal properly attended to and fixed up, and that if he did so, the defendant would pay the bills; the defendant intended, at the time of making said representations, that the plaintiff would rely on said representations and would act upon them; that the plaintiff had intended to have the animal destroyed, but instead, reasonably and justifiably relying upon the aforesaid representations, took the animal to a veterinarian who restored the animal to health and charged the plaintiff the sum of $295 for his services; which sum was a reasonable charge for the services rendered; that the defendant failed and refused to pay the aforesaid bill, and that the plaintiff was forced, under threats of legal action, to pay the sum to the veterinarian.
The defendant filed a general and special demurrer to the petition which were sustained. The plaintiff excepts to that ruling.
The petition did not set out a cause of action for the reason that there was no allegation that the plaintiff was damaged or that there was consideration for the promise alleged to have been breached by the defendant. The only consideration for the promise was that the defendant was liable for the damage done the defendant's dog, or apparently so, and that the promise was made upon the tacit understanding that the payment of the dog's hospital and medical expenses would release the defendant from all real or apparent liability for damages done the dog. The petition does not allege the dog had any value. In order for a petition, on whatever basis founded — whether sounding in contract or tort, to fix liability upon one who negligently damages the plaintiff's personalty, it must show that the personalty had value, and what the market value of the personalty was immediately prior and subsequent to the event that caused the damages. Louisville Nashville R. Co. v. Faust, 30 Ga. App. 310 ( 117 S.E. 761); Douglas v. Prescott, 31 Ga. App. 684 ( 121 S.E. 689).
The theory that the defendant's alleged promise was valid consideration because accepted by the plaintiff to his detriment is not sound. The petition alleges the costs of the treatment but not the value of the dog. For all the petition shows the value of the dog may have exceeded his medical and hospital expenses, so that the dog experienced benefit and his master profit. The judge did not err in sustaining the general demurrer to the petition.
Judgment affirmed. Nichols, J., concurs. Felton, C.J., concurs in the judgment.