Sterchi Brothers Stores Inc. v. Clark , 68 Ga. App. 259 ( 1942 )

1. The overruling of a general demurrer to a petition is proper matter for direct bill of exceptions.

2. The court did not err in overruling the general and special demurrers for any reason assigned.

DECIDED NOVEMBER 7, 1942. Rev. Jesse Lee Clark sued Sterchi Brothers Stores Inc., hereinafter called Sterchi, in trespass. Sterchi filed demurrers both general and special. The general demurrer was overruled. Some of the grounds of the special demurrers were sustained and some were overruled. To the judgment overruling certain of the special demurrers exceptions pendente lite were filed. Sterchi excepted directly to the overruling of the general demurrer and certain special demurrers. The allegations of fact of the petition as established by an amendment to the petition and by the sustaining of a number of special grounds of the demurrer are by both parties admitted as substantially correct, with the exception of two minor additions.

The action is to recover $2960.25 actual and punitive damages. Briefly, the allegations are as follows: In 1937 Clark built and equipped an automobile trailer at a cost of about $1000 and registered it in his name in North Carolina. Thereafter he came to Atlanta and became assistant pastor at Euclid Avenue Baptist Church. He used the trailer as his home and parked it on a lot behind the church. In 1938 Clark was seriously injured when struck by an automobile. He was carried to Grady Hospital where he remained for some time, and his physician advised him to go to the home of a daughter in North Carolina for rest and recuperation. He called a son, Elmo Clark, to the hospital and asked Elmo to take his trailer and care for it until such time as he became well and would call for it. Elmo took the trailer from the lot and had it parked in the back yard of a home on Boulevard Drive where he and his wife lived with a Mrs. Jackson. In 1941, Elmo Clark left Atlanta for Massachusetts to accept a job. His family went to South Carolina to live with his wife's father. Elmo left the trailer in the care of Mrs. Jackson, turning the keys over to her and agreeing to pay her a monthly rental for the space and the care of the trailer, instructing her to allow no one to have the trailer except his father. Thereafter, on September 11, 1941, Sterchi swore out an attachment against the trailer as the property of Elmo Clark, based on an account due it by Elmo for the purchases of a studio couch and radio. The officer levied the attachment on the trailer, the attorney for Sterchi having pointed it out as the property of Elmo Clark, and allowed it to remain stored on the premises of Mrs. Jackson. Mrs. Jackson informed the officers that the trailer did not belong to Elmo Clark, but belonged to his father, and at the same time wrote a letter to Elmo Clark, explaining what had happened. Elmo wrote a letter to Sterchi (which letter was turned over to Sterchi's attorney), explaining that the trailer was not his and making a payment on account, which payment was held by Sterchi. At the same time Elmo wrote his father-in-law, W. T. Head, in Due West, S.C., explaining what had happened. Shortly thereafter Head came to Atlanta and went to the office of Sterchi and informed an officer of that corporation whose name was unknown to the plaintiff that the trailer was not the property of Elmo Clark, but was the property of the plaintiff, and that the same should not be sold. However, said officer of Sterchi refused to do anything or agree to do anything to prevent a sale of the property or to release it from the levy. Thereafter Elmo Clark again wrote Sterchi, enclosing another payment, reducing his debt to only $14.58, and again pointing out that the trailer was not his property. The attorney for Sterchi proceeded to cause the trailer to be sold, on December 15, 1941, to J. K. Bishop, for $87.50 to satisfy Elmo Clark's debt, and thereafter mailed back to Elmo the moneys remitted to it between the time of the attachment and the time of the sale. Bishop had the trailer removed to his property. The plaintiff filed a bail trover against Bishop and recovered his trailer.

Clark seeks the recovery of actual and punitive damages. He filed a motion to dismiss the bill of exceptions on the ground that the assignment of error was premature. 1. The motion to dismiss is not well taken. The overruling of a general demurrer to a petition is proper matter for a direct bill of exceptions. Code § 6-701. See Coppedge v.Allen, 179 Ga. 678 (177 S.E. 340); Cooper v. Whitehead,163 Ga. 662 (136 S.E. 911); Newton v. Roberts, 163 Ga. 135 (135 S.E. 505); Ramey v. O'Byrne, 121 Ga. 516 (49 S.E. 595). In support of the motion counsel cites Mayor c. ofAlamo v. Smith, 66 Ga. App. 10 (16 S.E.2d 762). In that case no ruling on a general demurrer was involved. In the instant case the general demurrer was overruled. If no general demurrer had been filed this case would be similar to the Smith case. The motion to dismiss is denied.

2. The allegations of fact in the instant case are sufficiently similar to those in Atlantic Co. v. Farris,62 Ga. App. 212 (8 S.E.2d 665), to bring it under the ruling of the Farris case. A comparison of the facts in the two cases is convincing that there is no material difference between them. We invite a consideration of the facts and numerous authorities cited in the Farris case. We will not enter into a detailed discussion of the authorities cited or a comparison of the facts. The attorney for Sterchi pointed out the trailer to the levying officer as the property of Elmo Clark, the son of the true owner. The levying officer was informed by Mrs. Jackson, who was then in actual possession of the trailer, that it did not belong to Elmo but belonged to his father. Elmo wrote the defendant a letter to this same effect, which letter was delivered by Sterchi to its attorney. Also, before the trailer was sold, Head, at the instance of Elmo Clark, came to Atlanta, went to the office of Sterchi, and in a conversation with an officer of that corporation informed the officer that the property did not belong to the son, but belonged to the father. Still, Sterchi did not desist or make inquiry as to the ownership of the trailer. During the meantime Sterchi had received two remittances from Elmo Clark, which were held by Sterchi until after the sale. One remittance was accompanied by a letter protesting the sale of the trailer as the property of Elmo Clark, and informing Sterchi as to the true owner. The indebtedness of Elmo Clark was thus reduced to approximately $14. Nevertheless, in disregard of this information, and in the face of the payments which reduced the indebtedness to such a small amount, Sterchi sold the trailer and thereafter returned the moneys received from Elmo Clark.

It will be noted that the trailer was not in the actual possession of Elmo Clark when the levy was made. It will also be noted that it does not appear that any credit was extended to Elmo Clark on the faith that he was the owner or in possession of the trailer. Therefore, the principle announced in Code § 37-113 to the effect that when one of two innocent persons must suffer he who puts it in the power of a third person to inflict the loss, does not apply. Neither do the facts in the instant case bring it within the ruling in Ellis v. United StatesFertilizing c. Co., 64 Ga. 571, nor does Reisman v.Wester, 10 Ga. App. 96 (72 S.E. 942) apply. The Code section and the two cases cited hereinbefore are relied on by Sterchi to sustain its position. They deal with entirely different principles of law and facts. The court did not err in overruling the general demurrer or certain grounds of the special demurrers for any of the reasons assigned.

Judgment affirmed. Broyles, C. J., and MacIntyre, J., concur.