Cherry v. McCutchen

• Court: Georgia Court of Appeals
• Citation: Cherry v. McCutchen, 68 Ga.App. 682, 23 S.E.2d 587 (Ga. App. 1942)
• Decision Date: 04 December 1942
• Docket Number: 29621.
• Parties: CHERRY v. McCUTCHEN.

23 S.E.2d 587

68 Ga.App. 682

CHERRY v. McCUTCHEN.

No. 29621.

Court of Appeals of Georgia, Division No. 2.

December 4, 1942

Rehearing Denied Dec. 18, 1942.

Syllabus by the Court. [Copyrighted Material Omitted] want of jurisdiction over defendant, in absence of appearance and pleading by him. Ga.Code Ann. §§ 81-209, 110-709.

P T. McCutchen, Jr., brought an action in trover against "Cherry Transfer & Storage Company" in which he alleged that the defendant was in possession of "one very fine oil painting, approximately 24"' x 40"' 'snow scene' antique frame of the value of $2500.00, to which plaintiff claims title," and that the defendant refused to deliver such property to the plaintiff or to pay him the profits thereof. The process attached to the petition shows that the petition and process were served on the defendant "Cherry Transfer &amp Storage Co., a corporation", by leaving a copy with the agent in charge of the office and place of doing business of "said corporation in Fulton County, Georgia."

The defendant filed "his plea and answer, cross-bill and counterclaim," in which he denied the allegations of the petition and alleged that "he" was not in possession of any property of any value whatsoever of the plaintiff. For further plea and answer and by way of counterclaim, the defendant alleged that the plaintiff was indebted to the defendant $27.10 on open account for goods stored by the defendant for the plaintiff. The defendant further alleged that on September 21, 1936, the plaintiff stored with the defendant certain articles of household goods, and entered into a contract with the defendant, a copy of which was attached to the petition. This contract provided in part as follows: "It is hereby specifically agreed between the parties hereto, that if any trunk, box, bundle or crate of the goods, covered by this receipt and contract contains any jewelry, handwork, or other articles of high value such articles shall be referred to and described in the list below and the value stated by owner, so as to put Cherry Transfer & Storage Company on notice of such contents and the value. It is further agreed that if such notice is not given of the contents and value by the owner in writing, or having the same written in the list below, before or at the time of signing this contract, no claim shall afterwards be made for more than the actual value, and in no such case for a value in excess of $20 for any one such trunk, box or crate, together with the contents of the same. It is further agreed that for each $20 or fraction thereof in excess of $20 declared value the owner will pay 50 cents per month excess storage." The defendant further alleged that there was no value declared by the plaintiff on the article claimed to have been lost by the defendant, and that the plaintiff did not pay any added storage charge for any excess value of the oil painting. The defendant prayed that the prayers of the petition be denied and that the defendant have judgment against the plaintiff for $27.10 and costs.

The "warehouse receipt and contract" attached to the answer and cross-bill, and which contains the provision quoted above, is on a printed form on which there is the name, "Cherry Transfer & Storage Company Inc.," and this receipt and contract are signed by Cherry Transfer & Storage Co., Inc., by E. L. Rigell. This instrument contains an inventory of the articles stored by the plaintiff with the transfer company. Among these articles there are listed two pictures. On such instrument there is this notation: "This is to certify that I have this day received from Cherry Transfer and Storage Co. Inc. all the articles listed on the reverse side of this warehouse receipt, in good condition except one oil painting and picture and value $2500, also 4 rugs. This 15 day of December 1939." This instrument is signed by the plaintiff and was attached to the answer as an exhibit, and there appears after such exhibit in the record as a part of the defendant's answer and cross-action the following verification: "Personally appeared *** J. M. Cherry, who after being sworn on oath [says] that he is the owner and operator of Cherry Transfer & Storage Company and that the facts set forth in the foregoing plea and answer, counterclaim, and crossbill are true." This affidavit is sworn to before a notary public of the State at large.

Neither the plaintiff nor the defendant requested a trial by jury, as provided in Ga. L.1913, pp. 145, 165, § 39, under which act the municipal court of Atlanta was created, and the case came on for trial without the intervention of a jury. After the introduction of evidence the court rendered judgment for the plaintiff for $2470.80. The defendant filed a motion for new trial which was overruled. The bill of exceptions in which error was assigned on the overruling of the above motion for new trial contained this recital: "Defendant, Cherry Transfer & Storage Company, the trade-name of J. M. Cherry, doing business as Cherry Transfer & Storage Company, names himself as plaintiff in error." This court reversed the judgment overruling the motion for the reason that "Under the evidence and the law applicable thereto, the judgment for $2470.80 was not authorized." Cherry v. McCutchen, 65 Ga.App. 301, 16 S.E.2d 167, 169. The court held that the right of the plaintiff to recover the value of the picture involved was not limited by the provision in the warehouse receipt and contract quoted in the plea and answer. The court further held that "The measure of damages for the loss of articles which have no market value is the actual value to the owner, and not merely the sentimental or fanciful value," and that "Construing the plaintiff's testimony most strongly against him, which is the proper rule of construction, it failed to show the value of the picture to the owner."

The case came on for trial a second time without the intervention of a jury. Before the introduction of evidence counsel for the defendant requested the court to permit the case to be tried before a jury, which motion the court overruled.

On this trial the plaintiff testified relative to the value of the picture as follows: "The picture was an oil painting of a snow scene. It was a rectangular shape. It was longer than it was wide and had a wooden frame about four or five inches wide. There were raised gold leaves on the frame, stalks carved in the wooden frame, and there were four panels of the frame. My mother painted the picture. The picture had my mother's name on it. I had the picture since 1931, when I married. I got the picture from my father. It had been in my home when I was a boy, and at the time I married my father gave it to me. Since the picture was lost I made an investigation as to the value of this frame. I found that you couldn't buy a frame of that character without paying an exorbitant price. I went into the frame department at Rich's, and I wouldn't state definitely but I think Davison's too. They didn't have any frames like mine and told me that mine couldn't be duplicated. They just said if it could be duplicated it would be at an exorbitant price. My investigation did not lead me to any place where this frame could be duplicated at any price. Before we found out that the picture was missing we had plans drawn for my house, and in the plans we shaped the living room, mantel and fire place for this picture. We had that side paneled, and had the mantel planned so as to take care of the large picture; and the scheme, the color scheme of everything, was carried around that picture, and my wife had bought the drapery and slip covers based on the colors in that picture, and that picture was to hang over that mantel. Based upon the intended use of this picture and based on no sentiment whatsoever, the value of this picture to me is $2500." On cross-examination he testified as follows: "This picture was valuable to me because I built my home around it. It was my picture and the value to me is $2500. If my mother had not drawn it, and it was not given to me, I would not have had the picture.

The picture was valuable to me because I was the owner of it. I arrive at that value because I built my house and the picture was to hang on my wall, and would be worth $2500 to me. It is not based upon any experience I have had in oil painting or buying oil paintings or selling oil paintings. That is the value I put on the picture. The value I put on the picture is not based upon any replacement value or cost of repainting it, or anything of the kind, or the artist who drew it or any value of that kind. The value that is placed on the picture is $2500."

He further testified as follows: "This lost picture was a painting by my mother. She has since died. In addition to the other matters that I have testified about here, on account of associations, the fact that my mother did paint the picture and the fact that my mother is now dead, I prize the picture very highly. *** If my mother had not painted this picture, and did not have the connection with the picture that she did have, and that I have, I could not say what value a picture like that would have. I have never seen one like it. In this picture there were trees and mountains in the background with snow capped mountains. Then there was water between the hills. Some trees over here and it showed the water, and the sky was the main background."

The defendant introduced evidence to the effect that an oil painting of the kind testified to by the plaintiff was not valuable; that it was painted by an amateur or student; and that it had a market value of not more than $30 to $70. The defendant also introduced evidence to the effect that the frame was a cheap one.

The defendant introduced a certified copy of a...