Opinion
34133.
DECIDED SEPTEMBER 3, 1952. REHEARING DENIED SEPTEMBER 18, 1952.
Complaint; from Augusta Municipal Court — Judge Cooper. April 30, 1952.
Fulcher Fulcher, for plaintiff in error.
Boller Yow, contra.
While the original petition may have been subject to general demurrer as one for either money paid or services rendered, it was sufficient, for purposes of amendment, as an action for either; and the amendment offered having the effect of perfecting the petition as one for services rendered, the trial court erred in disallowing and striking the amendment upon objection; and having erred in that instance, it was consequently error to dismiss the petition on oral motion to dismiss, in the nature of a general demurrer.
DECIDED SEPTEMBER 3, 1952 — REHEARING DENIED SEPTEMBER 18, 1952.
The plaintiff, Rebecca Henry, brought an action in the Municipal Court of Augusta against A. D. Hemstreet, as executor of the will of Mrs. Emma R. Doscher, alleging that the defendant had qualified as executor under the will of Mrs. Doscher, and letters testamentary had been issued to him on July 5, 1950; that more than 12 months had elapsed since his qualification; that the defendant is indebted to the plaintiff in the sum of $1730, which sum is made up of the following amounts paid by the plaintiff to Louise Thomas for the nursing and care of Mrs. Doscher: $10 a week, for 39 weeks in 1947, $390; for 52 weeks in 1948, $520; for 52 weeks in 1949, $520; and the following amounts paid by plaintiff to Clara Watkins for the nursing and care of Mrs. Doscher; $12 a week for 25 weeks in 1950, $300; that the plaintiff, on July 28, 1950, presented her claim, duly verified, to the defendant and he declined payment; and that said amount is just, due, correct, and unpaid.
The defendant demurred to the petition on the grounds that the petition set forth no cause of action and that it affirmatively appeared from the face of the petition that the plaintiff had no cause of action against the defendant.
On March 27, 1952, the following amendment to the petition was allowed subject to objection and demurrer: The allegations that the plaintiff had paid the sum of $1730 to Louise Thomas and Clara Watkins for nursing and caring for Mrs. Doscher were stricken, and the following allegations were substituted therefor: "That defendant is indebted to plaintiff in the sum of seventeen hundred thirty dollars ($1730) for services rendered by plaintiff to Emma R. Doscher, which were valuable to said Emma R. Doscher and which were accepted by said Emma R. Doscher, which services were of the value of seventeen hundred thirty dollars ($1730) and which were rendered to said Emma R. Doscher by plaintiff through Louise Thomas and Clara Watkins as agents employed by plaintiff to render nursing and care to Emma R. Doscher, the services rendered by plaintiff through Louise Thomas for thirty-nine (39) weeks in 1947 and the years 1948 and 1949 being of the value of fourteen hundred thirty dollars ($1430), and the services rendered by plaintiff through Clara Watkins for twenty-five (25) weeks in 1950 being of the value of three hundred dollars."
The defendant objected to the amendment on the grounds that the petition was fatally defective and there was nothing by which to amend; and that the proffered amendment set forth new and distinct matters and allegations constituting a new and different cause of action from that alleged in the plaintiff's original petition.
On April 30, 1952, the trial court sustained the defendant's objection, revoked its prior order of March 27, 1951, allowing the amendment subject to objections, and struck the amendment. The same day, the court also sustained the defendant's motion to dismiss the petition and the petition was dismissed. The plaintiff excepted to both judgments.
1. As declaratory of the common law, it is provided in Code § 4-103: "Whatever one may do himself may be done by an agent." The petition as amended alleged that the services of nursing and caring for Mrs. Doscher were rendered by the plaintiff, through her agents, Louise Thomas and Clara Watkins. "In the normal course of human affairs where one person renders a service valuable to another which is accepted by the latter, he does so either under an express or implied promise of the recipient of such service to pay for the service, or the service is rendered gratuitously. Among members of a family group the services of one member in caring for another member are presumed to have been gratuitously rendered. Code, § 3-107. This presumption, however, may be rebutted by proof of an express promise on the part of the recipient of the services to pay for such services, or, at least where adults are concerned, by proof of an implied promise to pay for the services by taking into consideration in such latter case the nature of the services and the facts and circumstances under which the services were rendered. Murrell v. Studstill, 104 Ga. 604 ( 30 S.E. 750); Howard v. Randolph, 134 Ga. 691 ( 68 S.E. 586); Westbrook v. Saylors, 56 Ga. App. 587 ( 193 S.E. 371); Tatum v. Moss, 58 Ga. App. 434 ( 198 S.E. 814); Humphries v. Miller, 66 Ga. App. 871 ( 19 S.E.2d 321)." Guyton v. Young, 84 Ga. App. 155, 162 ( 65 S.E.2d 858); Watts v. Rich, 49 Ga. App. 334 ( 175 S.E. 417); Moore v. Smith, 121 Ga. 479 ( 49 S.E. 601); Cooney v. Foote, 15 Ga. App. 455 (5) ( 83 S.E. 896); Kraft v. Rowland, 33 Ga. App. 806 ( 128 S.E. 812); Strahley v. Hendricks, 40 Ga. App. 571 ( 150 S.E. 561). The petition as amended contained no allegation of a familial relationship between the plaintiff and Mrs. Doscher so as to raise the presumption that the services of nursing and caring for Mrs. Doscher were gratuitously performed by the plaintiff; nor does it otherwise appear from the petition as amended that the plaintiff intended the services as a gratuity and that Mrs. Doscher accepted them as such. Under this state of the pleadings the petition as amended stated a cause of action for the reasonable value of the services rendered by the plaintiff, through her agents, which were accepted by Mrs. Doscher, (Code, § 3-107), and the action was properly brought against Mrs. Doscher's executor.
It is contended, however, by counsel for the defendant that the amendment should not have been allowed in the first instance and that the trial court was correct in later disallowing it upon objection as the amendment set forth a new and distinct cause of action. We can not agree.
"Plaintiffs and defendants, whether at law or in equity, may at any stage of the cause, as a matter of right, amend their pleadings in all respects, in matters of form or substance, if there is enough in the pleadings to amend by. Code (1910), § 5681 [Code, § 81-1301]. Clearly the right to amend is exceedingly broad. Georgia R. c. Co. v. Tice, 124 Ga. 459 ( 52 S.E. 916, 4 Ann. Cas. 200); Cox v. Ga. R. c. Co., 139 Ga. 532, 533 ( 77 S.E. 574). Amendment is a resource against waste. Ellison v. Ga. R. Co., 87 Ga. 691, 697 ( 13 S.E. 809); Atlanta c. R. Co. v. Ga. Ry. c. Co., 125 Ga. 798 ( 54 S.E. 753). The practice as to the allowance of amendments is very liberal. Benning v. Horkan, 123 Ga. 454 ( 51 S.E. 333); Kemp v. Central Ry. Co., 122 Ga. 559 ( 50 S.E. 465); Mendel v. Miller, 134 Ga. 610 ( 68 S.E. 430). If an amendment is germane to the original cause of action, it should be allowed. Patrick v. Cobb, 122 Ga. 80 ( 49 S.E. 806); Woodward v. Fuller, 148 Ga. 239 ( 96 S.E. 323). Where an amendment does not set forth a different cause of action from that alleged in the petition, it is the right of the plaintiff, upon election, to amend. Gabbett v. Atlanta, 137 Ga. 180 ( 73 S.E. 372)." Jenkins v. Lane, 154 Ga. 454, 471 ( 115 S.E. 126).
"A petition showing a plaintiff and a defendant, and setting out sufficient to indicate and specify some particular fact or transaction as a cause of action, shall be enough to amend by. The jurisdiction of the court may be shown and the details and circumstances of the particular transaction may be amplified and varied by amendment. If the declaration shall omit to allege facts essential to raise the duty or obligation involved in the cause of action which was evidently originally intended to be declared upon, the omitted fact may be supplied by amendment." Code, § 81-1302.
While, from the original petition, it is not clear whether the plaintiff was declaring upon the common count of money paid or the common count of services rendered, the petition partakes more of the nature of the former; and while it is doubtful that as against even a general demurrer it would have stood the test of stating a cause of action as one for money paid or for services rendered, one thing is certain, the plaintiff was, in that petition, endeavoring to recover upon an assumpsit for the nursing and care of Mrs. Doscher, and, for the purposes of amendment, under the rules as to amending stated above, the original petition was sufficient. See in this connection Smith v. Palmer, 60 Mass. 513. The amendment perfected the petition as one for services rendered by the plaintiff and accepted by the defendant executor's testator, and the court erred in disallowing the amendment upon objection that it stated a new and distinct cause of action.
Consequently, having erred in disallowing the amendment, the trial court erred in dismissing the petition.
Judgment reversed. Gardner, P. J., and Townsend, J., concur.