Opinion
37179.
DECIDED JULY 3, 1958. REHEARING DENIED JULY 31, 1958.
Action for damages. Fulton Superior Court. Before Judge Pye. March 20, 1958.
Smith, Field, Doremus Ringel, Sam F. Lowe, Jr., for plaintiff in error.
Northcutt, Edwards Johnston, W. S. Northcutt, contra.
Where no attack was made upon a count in a petition on the ground that it did not state a cause of action and where the plaintiff proved the case as laid in such count, the plaintiff is entitled to recover upon the allegations. In this case no such attack was made on count 1 of the petition, and the evidence demanded the finding that the defendant common carrier was liable as common carrier for the value of the goods agreed to be transported, and since there is no issue as to whether the amount of damages found was authorized, the trial judge did not err either in denying the amended motion for new trial or in denying the motion for judgment notwithstanding the verdict which motion did not include a ground based on the insufficiency of count 1.
DECIDED JULY 3, 1958 — REHEARING DENIED JULY 31, 1958.
This is the second appeal of this case. In Washburn Storage Co. v. Elliott, 93 Ga. App. 456 ( 92 S.E.2d 28) this court reversed the judgments of the trial court in overruling the demurrers to the petitions on the ground of misjoinder of parties defendant and in not requiring the plaintiffs to elect to proceed against either the principal or its undisclosed agent. Thereupon the plaintiffs in their separate actions elected to proceed against Washburn Storage Company which acted as agent for United Van Lines, Inc. The plaintiffs then amended their three-count petitions and substituted a one-count petition in which each sought recovery on the theory that the defendant as agent for an undisclosed principal was liable in damages as a common carrier for failure and refusal by the defendant to redeliver the goods to the plaintiffs after having agreed with them to transport their furniture and other personal property from New York to Atlanta, store it in the defendant's warehouse and deliver it to Mrs. Helen S. Elliott's apartment to be obtained by her after the close of school in New York. There was no demurrer to the one-count petitions, nor was there an oral motion to dismiss in the nature of a general demurrer filed thereto. Thereafter the plaintiffs, Mrs. Elliott and her daughter, Mrs. Elliott having made the alleged contract on behalf of the daughter for the transportation of the daughter's property, as well as for the transportation of her own, amended their petitions and added a second count to the petitions based on the contention that the defendant was liable to petitioners as warehouseman, as distinguished from that of common carrier as relied on in the first count. There was no contention on the part of the defendant that both counts were based on the same theory and after the filing of the second count the defendant still did not move orally to dismiss the first count on the ground that it set forth no cause of action. The cases were consolidated and tried together. The jury found for the plaintiffs, and the defendant excepts to the denial of its amended motion for new trial and its motion for judgment notwithstanding the verdict which did not attack the sufficiency of the petition.
With respect to the responsibility of the defendant in this case as a common carrier, the first count alleged as follows: "1. Defendant is a common motor carrier, having office and place of business in Fulton County, Georgia. 2. Defendant, on February 18, 1954, was in the business of interstate transportation for hire of household furniture and personal property. 5. On said date United Van Lines, Inc., was a common carrier by motor vehicle of goods in interstate commerce. 6. On said date there was in force and effect a certain agency agreement between United Van Lines, Inc., and defendant Washburn Storage Company, copy of which is attached to this amendment as Exhibit `A'. 7. The existence of the agreement so attached as Exhibit `A' was not known to petitioner until February 18, 1955, on which date plaintiff took the depositions of witnesses in this case. 8. Petitioner did not know that defendant was agent of United Van Lines, Inc. until after the filing of this suit. 9. Defendant, during the month of February, 1954, entered into a contract for hire with petitioner which arose out of the conversations and transactions described in this petition. 10. The term of the contract so made commenced in February, 1954, and extended until date of petitioner's expected arrival in Atlanta, Georgia, in the summer of 1954. 11. On February 18, 1954, J. T. Johnston was agent of defendant Washburn Storage Company in charge of the place of business of Washburn Storage Company on Marietta Street, in Atlanta, Fulton County, Georgia. 12. On said date petitioner knew that J. T. Johnston was manager of said place of business in Atlanta. 13. On said date petitioner and her daughter, Lorraine Elliott, resided at No. 3545 90th Street, Jackson Heights, New York City, State of New York. 15. On said date petitioner negotiated with J. T. Johnston for the moving of her household furniture and personal property to Atlanta, Georgia, by oral conversation in which petitioner in New York and J. T. Johnston in Atlanta, Georgia, were talking with each other by long distance telephone, during which telephone conversation the following statements material to this suit were made: (a) Petitioner told said J. T. Johnston that she had sold her New York home, that she was moving to Atlanta, Georgia, and that petitioner desired to have her household furniture and personal property moved to Atlanta, Georgia, pending petitioner's removal to Atlanta, Georgia, following her daughter's graduation in June, 1954. (b) Petitioner told said J. T. Johnston that she would stay in New York until her daughter graduated in June, 1954, and that just as soon as the daughter graduated, petitioner would leave New York and go to Atlanta, Georgia, and find a place to live in Atlanta. (c) Petitioner asked J. T. Johnston to arrange to get her furniture and take it to Atlanta for delivery in her new home in Atlanta just as soon as petitioner could so move and find a place to live there. (d) In reply to these requests and in the same conversation J. T. Johnston promised to send a truck for petitioner's property and have it at her New York home on the last Friday in February, 1954. 16. Following the above conversations J. T. Johnston, acting as manager of Washburn Storage Company, communicated petitioner's said order to Richard A. Peterson, the dispatcher of United Van Lines, Inc., at the district office of United Van Lines, Inc. in Lynhurst, New Jersey. 17. United Van Lines, Inc., acting by and through its said dispatcher, accepted the order so communicated to it by J. T. Johnston and sent to petitioner's New York home on the date so agreed by J. T. Johnston a truck and crew of men for the purpose of receiving petitioner's property in New York and taking it to Atlanta, Georgia. 25. Said truck came to petitioner's New York home for the purpose of carrying out, and did carry out, the promise so made by J. T. Johnston to petitioner. 26. Thereafter, United Van Lines, Inc., acting by and through its said agents, drove said truck away from petitioner's property thereon, and transported said property to Atlanta, Georgia. 27. Upon arrival of said property in Atlanta, Georgia, United Van Lines, Inc., placed same in the warehouse of defendant in Atlanta, Georgia, to await petitioner's arrival from New York to receive same. 28. Petitioner never received any bill of lading for property so transported. 29. Petitioner never received any receipt for property so transported. 30. Petitioner never at any time made, nor was she called on to make, a declaration of the value of said property. 32. No released value of property so transported was ever mentioned to petitioner, nor was any released value agreed to by petitioner at any time. 39. After receiving said property in Atlanta, Georgia, defendant continued to hold same awaiting petitioner's arrival to receive same. 42. Neither defendant nor United Van Lines, Inc., ever demanded any charge from petitioner for the handling or transportation of her said property, although petitioner at all times stood ready and willing to pay same. 43. On two occasions prior to the filing of this suit petitioner made inquiry of J. T. Johnston as to the amount of said charges. 44. In reply to these inquiries J. T. Johnston, the agent above named, stated to petitioner on one occasion that the amount of said charges was about $500, and on another occasion that the amount of such charges would be between $500 and $600."
On June 8, 1956, a judge of the trial court signed an order allowing the substituted petition and allowed the defendant twenty days to file defensive pleadings or demurrer thereto. As stated, no demurrer was filed.
The evidence on the question of what the contract was is as follows: "Q. Mrs. Elliott, tell the jury now in February, 1954, just what conversation did you have with Mr. J. T. Johnston, the manager of Washburn Storage Company? A. I asked him to come and pick up the furniture, preferably on Saturday, because I had sold my home and I had to turn it over on the 1st of the month. He said Saturday would be overtime and extra pay and it wouldn't be convenient. They would have to get other men, but he could do it on Friday, and I said, well, then, all right. Q. And on what Friday, if you know? A. The last Friday in February. Q. All right, on the last Friday in February, 1954, what did Mr. J. T. Johnston agree to do? A. He agreed to pick up the furniture and put it into storage until after Lorraine graduated. Q. What date, if any, did you tell him that your daughter would graduate? A. At the end of June, 1954. . . Q. And what, if anything, did you tell Mr. Johnston about when you would come to Atlanta? A. As soon as she graduated. . . Q. And what, if anything, did Mr. Johnston agree to do about your furniture? A. He agreed to pick it up and store it, as I asked him to. Q. And to deliver it where? A. At the new home, apartment what I was to get. Q. Where? A. In Atlanta." This testimony was uncontradicted and unimpeached. There were no receipts given the plaintiffs. No separate bills were rendered to them for transportation and storage. No bill of lading was signed by either plaintiff.
1. The evidence demanded the finding that the defendant contracted to transport the property from New York to Atlanta, to store it temporarily and then to transport it to an apartment to be obtained by Mrs. Elliott in Atlanta. Since no questions are raised as to the value of the property, and since the evidence demanded a verdict of liability under the first count, the court did not err in denying the motion for new trial and the motion for judgment notwithstanding the verdict. This conclusion renders unnecessary the consideration of the questions raised by the special grounds of the amended motion for new trial involving questions relating solely to the second count which are concerned with questions connected with the care exercised by the defendant as warehouseman and the question whether the court erred in submitting to the jury the question whether the contract alleged and proved rendered the defendant liable as carrier or as warehouseman.
That the original petitions and count 1 of the rewritten and amended petitions sought recovery for the defendant's breach of contract as a common carrier seems to us to be beyond question. The allegations showed that demand was made for the goods after they were stored in the warehouse and long before Mrs. Elliott planned to get an apartment in Atlanta. The plaintiff in error admits in its motion for a rehearing that the original rewritten petitions alleged that the property was destroyed by fire while in storage and that they were demurred to on the ground that the petition did not allege that the fire was caused by defendant's negligence and that, after the filing of this demurrer, the plaintiffs struck the allegations that the property was destroyed by fire while in storage. This is indicative of the plaintiffs' desire to avoid basing the first count on a breach of a duty as warehouseman, whether in contract or tort. Then, to seal the intention as to the first count the plaintiffs added a second count contending that under the alleged contract the defendant was liable as warehouseman while the first count indisputably showed that whatever happened to the goods happened while they were in storage. No general demurrer or motion to dismiss was filed either before or after the addition of the second count. It is not necessary for us to decide whether the first count set forth a cause of action for liability as a carrier or not. Assuming that it did not if the case was proved as alleged the plaintiffs were entitled to a verdict as against a motion for new trial or motion for judgment notwithstanding the verdict on the ground that the evidence did not support the verdict. Such an indirect method of attacking pleadings is not permissible. Grice v. Grice, 197 Ga. 686, 691 ( 30 S.E.2d 183); Crew v. Hutcheson, 115 Ga. 511, 534, 42 S.E. 16). Under the act of 1953 (Ga. L. 1953, pp. 440-444; Code, Ann., § 110-113) and the act of 1957 (Ga. L. 1957, pp. 235, 236) the ground of a motion for judgment notwithstanding the verdict is confined to the grounds of a previous motion for a directed verdict. Where the ground of a motion for a directed verdict is the same as the general grounds of a motion for new trial the principle being discussed is the same in each case. We can find no case specifically holding that defective pleadings can be attacked by a motion for a directed verdict. Assuming for the sake of argument, but emphatically not deciding, that a pleading may be attacked by such a method, no effort was made in this case to so attack the pleadings. We think that the case was proved as alleged and the evidence demanded the verdict that the defendant was liable as common carrier, in other words, as insurer of the goods, since there was no contention made that the destruction of or damage to the goods by fire was due an act of God or the public enemy.
On motion for a rehearing the plaintiff in error strongly relies on Francis v. Wood, 75 Ga. 648, 652, as an exception to the rule that a defect in pleading cannot be excepted to by a motion for new trial. However, in that case the reason the court gave for its conclusion does not state an exception to the rule. The court ruled in that case that the court did not have jurisdiction to try the fourth and insufficient count. The Supreme Court in Kelly v. Strouse, 116 Ga. 872 ( 43 S.E. 280) distinguished the case and adhered to the principle above laid down. In no other case can we find where the rule stated does not apply except in a one-count petition. The same penalty obtains when a four-count petition goes undemurred to as when a one-count petition is undemurred to. Each count is a separate petition and there is no legal or logical method known to distinguish between a one-count petition and a multiple-count petition. Grice v. Grice, 197 Ga. 686, supra, was a three-count petition, and the rule was applied despite that fact, and the rule in Francis v. Wood, supra, was not followed.
Judgments affirmed. Quillian and Nichols, JJ., concur.