Atwater v. Hannah

• Decision Date: 12 December 1902
• Citation: 116 Ga. 745,42 S.E. 1007
• Parties: ATWATER. v. HANNAH et al.
• Court: Georgia Supreme Court

42 S.E. 1007

116 Ga. 745

ATWATER.

v.HANNAH et al.

Supreme Court of Georgia.

Dec. 12, 1902.

WAREHOUSES — AGREEMENT TO INSURE — PLEADING — AMENDMENT — NEW CAUSE OF ACTION—NEW TRIAL—NEWLY DISCOVERED EVIDENCE.

1. "A mere statement in a warehouse receipt that, All cotton stored with us fully insured, ' will not alone constitute a contract between the parties, requiring the warehouseman to insure the cotton of his customer, and rendering him liable for the value of the same when destroyed by fire."

2. The amendments to the petition were properly disallowed for the reason that each sought to set up a new and distinct cause of action.

3. The evidence authorized the verdict. The showing as to diligence in reference to the alleged newly discovered evidence not being at all satisfactory, and there being no affidavit as to the character and credibility of the alleged new witness, the discretion of the trial judge in refusing to grant a new trial will not be controlled.

(Syllabus by the Court.)

Error from superior court, Upson county; D. M. Roberts, Judge.

Action by J. W. Atwater against G. W. T. Hannah & Co. Judgment for defendants, and plaintiff brings error. Affirmed.

J. A. Cotten and Worrill & Rigsdill, for plaintiff in error.

M. H. Sandwich and J. Y. Allen, for defendants in error.

COBB, J. Atwater sued Hannah & Co., alleging in his petition, in substance, that the defendants were warehousemen, and as such had received for plaintiff six bales of cotton, which they undertook, for a consideration, to safely keep and deliver upon demand, but which they had failed to do, thereby becoming liable to plaintiff in a stated sum. It was further alleged that defendants, in order to induce custom, had inserted in the warehouse receipts the following: "All cotton stored with us fully insured. Acts of Providence excepted." It was averred that this statement was in the receipts given to plaintiffs that it constituted an agreement to insure; that plaintiff relied on it as an agreement to insure, and did not insure his cotton; that the same was destroyed by fire; and that therefore the defendants became liable to him, as insurers, for the value of the cotton. It was also alleged that the loss of the cotton was due to the gross negligence of the defendants; the petition setting out fully what is claimed to constitute the negligence, and laying damages in a stated sum. The trial resulted in a verdict for the defendants, and the case is here upon a bill of exceptions assigning error upon the refusal to grant a new trial, and upon other rulings made pending the trial.

1. The defendants filed a written demurrer upon the ground that there was a misjoinder of causes of action, in that the petition contained two counts, one sounding in contract and the...