Lee v. Nelms , 57 Ga. 253 ( 1876 )

Bleckley, Judge.

1. The plaintiff below sued for $100 00 damages, but set out a bill of particulars amounting to much less. The jury gave him more than he claimed — that is, more than $100 00. The court, on the motion for new trial, disapproved of the excess, but left the verdict to stand for the $100 00. The suit was brought originally in the county court, and went to the superior court by appeal. The jurisdiction of the county judge, in cases of tort, does not extend to more than $100 00 damages; but where the claim is for more, provision is made for remitting or releasing so much as will reduce it to that sum: Code, section 282. The tort sued for, was injury done to certain domestic animals belonging to the plaintiff, but there was no allegation that the defendant’s inclosure was not protected by a lawful fence, or that the plaintiff claimed, or that the defendant was liable for, three times the damage. To sustain the action, as founded on the Code, section 1445, some notice should have been given, in the pleadings, of these two matters. The statute is highly penal, and when the large penalty which it prescribes is sought to be recovered, the defendant should be fairly warned by the action that the right to have triple damages is asserted. Not less material, is the attack to be made on the sufficiency of his fence. The want of a lawful fence must be alleged and established. In the plaintiff’s pleadings, we perceive nothing, whatever, to indicate that he meant to found his action on the Code, and not on the general law. The special conditions to rest it on the Code do not appear. And treating it as founded on the general law, the amount of the verdict, even as modified by the judge, is much too large, being in excess of all the damage sustained.

2. The evidence fixes no tort upon the defendant, committed by himself, in person. Granting that he is liable for the wilful as well as the negligent acts of his servants, it is only for such acts as were committed in the prosecution and scope of the master’s business. Looking alone to the legal evidence in the record, we should have much difficulty in holding that there is enough to show that the plaintiff’s property was injured by the defendant’s servants whilst they were acting within the scope of their employment. It seems difficult to tell whether the injury was done whilst the animals were in the defendant’s field or not. Care should be taken not to go. beyond the evidence, and what is fairly inferrable from it, in fixing the defendant’s liability; more especially,if he is tobe held accountable for treble damages.

3. As to admissions made by the servants after the injury was done, and so remote in time as not to be part of the res gestae, they are not, in this action, to be treated as evidence at all. Though they would be good against the servants who made them, they count for nothing against the master: 53 Georgia Reports, 395, 635.

Judgment reversed.