Tift v. Towns , 63 Ga. 237 ( 1879 )

Bleckley, Justice.

1. The Code, in section 3333, makes the time of filing the declaration the time of commencement of suit. In section 3487, it declares that “in an action by or against an individual the pleadings may be amended by inserting his representative character.” Here, the plaintiff below sued apparently as an individual, and pending the action, the declaration was amended so as to show that she sued, in fact, as the executrix of her husband. The right person was in court from the beginning, but she was there in the wrong capacity. Formerly, perhaps, such an error in pleading was not amendable, but when it was made amendable by statute the defect became completely curable, and when cured, it was as though it never had existed. After the amendment as before, the suit is the same suit, and not another; and if the same, the time when the declaration was filed is the time when it was commenced. An amendment which goes to the whole action, and to the only party plaintiff on the record, cannot logically be regarded as the beginning of a new suit. The very object of allowing it is to avoid the -consequences of defeating the pending action and the institution of another. One of these consequences might be a bar by the statute of limitations. The person holding a right and proceeding to assert it, but mistaking the capacity in which it is held and ought to be asserted, might litigate for years, and at last be defeated on a plea of the statute. If the first action, as a whole, Is to be saved by amendment at all, why not save it as against the statute of limitations? In the present case, the suit was in time, if the suit tried was identical with that begun when the declaration was filed; but it was too late if the amendment inaugurated a new aetion. We think the former is the correct view, and that the statute of limitations has no more application since the amendment than It had before.

2. Damages are given as compensation for the injury. Code, §§2940, 3065. When a person keeps a wagon and team for hiring out, to break up the team or disable it, is to •cut off the Income which would result from such hiring. But in the ease before us, the use was alone for plantation purposes, and the plaintiff had other animals from which to make up a team and do the customary hauling. Moreover, the four horses were damaged unequally; one was but •slightly injured, another was damaged to its full value, and the third was injured worse than the fourth. With this Inequality, to keep them grouped as a team, and to charge hire for them as such, is to make a forced computation of the damages which the plaintiff sustained, especially in view of her preparation for supplying their places as a team from other animals on the plantation. The cost, if anything, of making this change in the constitution of a necessary team for the accustomed hauling, would be an item of the damage; but the value of the injured horses for hire as a team was, under the facts, irrelevant, and therefore inadmissible as evidence. Indeed, the hire of the horse, which the injury rendered totally valueless and unserviceable, was not recoverable on any basis. As to him, the investment was at an end, and there was nothing to do but to pay for him in full, and thus replace the destroyed capital (with interest) to be invested or not in other property at the owner’s discretion. See authorities on the point in Atlanta & West Point Railroad Co. vs. Hudson, last term.

3. No counsel fees ought to have been allowed by way of damages. The case is one fairly open to controversy in all its branches. The plaintiff commenced by insisting upon too high a standard both of liability and compensation.. The defendant has had to- resort to. this court for protection in a previous instance, (53 Ga., 47) and again on the present occasion. No man is bound to forego litigation at'tlie expense of yielding rights apparently well founded, much less those which prove to be so founded in the end. Where there is a bona fide controversy for the tribunals to settle, and the parties cannot adjust it amicably, there should be no burdening of one with the counsel fees of the other, unless there has been wanton or excessive indulgence in, litigation,

4. It was not error to abstain, from preventing one of the jurors from taking notes of what the plaintiff’s counsel claimed, though the notes were taken at the request of the counsel during his argument, and whilst he read from a calculation which he had prepared. Of course this practice would be inadmissible if attended with delay or undue consumption of time. We take it for granted it was not so attended in this instance. There is no power to compel any juror to comply with such a request, and the counsel of either party is equally free to make it.

5. What was stricken from the verdict was mere surplus-age, and there was no doubt that the court may direct anything of that nature to be expunged.

We have ascertained the amount which the jury found in excess of what the evidence authorized, under the law as we have expounded it, and while we reverse the judgment, we allow the plaintiff the privilege of writing off the excess, and thus avoiding a new trial.

Cited by counsel. Amendment, Code, §§3479, 3487; 41 Ga., 84, 652 ; 29 Ib., 273 ; 54 Ib., 59 ; 45 Ib., 106 ; 4 lb. 263. Counsel fees, Code, §2943; 59 Ga., 797; 53 Ib., 47. Damages, hire, etc., Shear. & Red. on Neg., 650 to 660; 8 Allen, 560.

Judgment reversed on terms.