Tinsley v. Gullett Gin Co. , 1917 Ga. App. LEXIS 683 ( 1917 )

ON MOTION'EOB REHEARING.

Jenkins, J.

Counsel for the defendant in error present a motion for rehearing, based upon the ground that the ruling stated in the fourth headnote of the decision in this ease does not take into account that the defendant, in his pleas, failed to describe the defects in the machinery complained of, but, on the contrary, pleaded merely results from the operation of the machinery, which may or may not have been caused by defects, and which may have resulted from unskilful operation; the contention being that, although the defendant was bound to plead the cause, he has merely pleaded the effect. The pleadings of the defendant are voluminous. The first amendment by which it was sought to set out in detail the defects complained of was as follows: “Defendant says that in spite of all his efforts, and those of plaintiff’s expert mechanics who were here three different times during the cotton season, and the advice of [its] said agent, Belleau, who was present at the gin at least once a month during the said ginning season, the trouble continued and increased in said machinery. The gin saws gave trouble in not cutting the lint clean from the seed, in cutting and knotting the fibers of the lint, and in the hack lashing of the cotton'upon the saws, which clogged the machinery and caused it to stop. Seed cotton collected and clogged in the belt passages leading through the elevator, pushing the belts from the pulleys, and collected and congested in the distributor, both of which troubles caused the machinery to he shut down until same could be relieved. The flue leading to the condenser became clogged with lint, dirt, and trash, which not only damaged the sample of cotton, but made it necessary to shut down machinery to' clean it out. The condenser became congested with cotton, and the machinery had to he stopped that same might he relieved. All of which troubles caused repeated stoppings of the entire gin system, and loss of time to entire gin crew. Defendant had to stop the machinery for some such trouble several times a day, so that defendant was able to run said gin only one full day during the entire gin season, and the lost time amounted in all to not less than fifty days in the whole gin season.” By a subsequent amendment the defendant alleged as follows: “That the said machinery would not do satisfactory work, in that the general construction of the machinery was such as to cause choking of cotton as hereinbefore set out, and that same would not perform the services for which it was contracted for, on account of defects in said machinery that were latent, and that defendant could not discover, and that plaintiff, in attempting to remedy same, did not disclose to him the defects in same, but simply said to him, * close down the machinery,’ and then left without placing same in running order. That the trouble in said machinery was of such nature that only a machinist could ascertain and by him be clearly defined, and that it was so hidden this defendant could not do so.” The third paragraph of the answer, as amended, is as follows: “Defendant says that he faithfully put up and operated the machinery in question properly, according to the plan and directions furnished him by plaintiff for the purpose, said blue print having been sent' to defendant by said company, and was used by the company’s said mechanic, Mr. Gunn, in erecting the said machinery, and which blue- print said mechanic, said company’s agent, carried away with him after finishing the erection of said plant; that he employed engine and other motive machinery sufficient for all its needs and to comply with plaintiff’s requirements, and did comply with all requirements of plaintiff in equipment and operation, and defendant used every diligence and skill in seeking to operate said machinery successfully by employing and keeping a competent gin man to run said machinery, and so continued said efforts from the time he first began the use of said machinery, to wit, on the 14th day of August, 1914, throughout the gin season of the year named.” It thus appears that the plea set up and definitely described certain results attendant upon the skilled and proper operation of the machinery, which a machine not defective would not and should not produce, and which it is alleged rendered the outfit unfit for the' services for which it was bought. In the case of Charleston & Western Carolina Ry. Co. v. Attaway, 7 Ga. App. 231 (66 S. E. 548), this court said: “A defect in a machine may be described by showing that the machine was in such condition that it produced certain definitely described results which a machine not defective would not and should not produce. It is not necessary to describe minutely or particularly the physical appearance of the parts alleged to be defective.”' In Atlantic Coast Line R. Co. v. Davis, 5 Ga. App. 214, 217 (62 S. E. 1022), it was held: “To say that a locomotive smoke-stack was so insufficiently constructed that it allowed live sparks of fire to come through describes with legal definiteness a lack in its construction.” In Hubbard v. Macon Railway & Light Co., 5 Ga. App. 223, 226 (62 S. E. 1018), the court used the following language: “Even in pleading it is not necessary that the negligent deficiency be described in structural terms; a deficiency may be sufficiently alleged by stating that the particular contrivance was so constructed or maintained that it gave forth a result which it was designed to prevent, and which such contrivances, as they are usually constructed and maintained, do prevent.” The averments of the plea having, in our opinion, met the requirements of law as laid down in the rulings quoted from, we think the ground of the motion for rehearing is without merit, and the motion is therefore denied.