DocketNumber: 29789.
Citation Numbers: 22 S.E.2d 740, 68 Ga. App. 259
Judges: GARDNER, J.
Filed Date: 11/7/1942
Status: Precedential
Modified Date: 1/12/2023
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.
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 *Page 261 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,
2. The allegations of fact in the instant case are sufficiently similar to those in Atlantic Co. v. Farris,
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.,
Judgment affirmed. Broyles, C. J., and MacIntyre, J., concur.