City of Macon v. Melton

• Decision Date: 02 April 1902
• Citation: 41 S.E. 499,115 Ga. 153
• Parties: MAYOR, ETC., OF CITY OF MACON v. MELTON.
• Court: Georgia Supreme Court

41 S.E. 499

115 Ga. 153

MAYOR, ETC., OF CITY OF MACON v. MELTON.

Supreme Court of Georgia

April 2, 1902

Syllabus by the Court.

1. A petition which sets forth as a cause of action described conduct of the defendant may be amended by alleging additional consequences, with resulting damages, arising out of such conduct.

2. It is competent for a plaintiff to prove the material allegations of his petition when the legal sufficiency of the same is not challenged by a demurrer or motion in the nature thereof.

3. Instructions, even if not in all respects correct, afford no cause for a new trial when they are manifestly harmless to the party complaining of the same.

Error from city court of Macon; W. D. Nottingham, Judge.

Action by H. H. Melton against the mayor and council of the city of Macon. Judgment for plaintiff, and defendant brings error. Affirmed.

Minter Wimberly, for plaintiff in error.

Crump & Gerry and Dessau, Harris & Harris, for defendant in error.

LUMPKIN P.J.

This was an action by Melton against the mayor and council of the city of Macon, on the trial of which he obtained a verdict for $217.25, and the defendant brought the case here for review. The petition alleged that the plaintiff was for a stated term the lessee of described premises in the city of Macon, having a storehouse thereon; that he conducted upon these premises a wagon yard and blacksmith business; that the municipal authorities, by raising the grade of a street in front of the property, had cut off ingress to and egress from the same to the plaintiff's damage; that by reason of these facts he had for a time specified been unable to carry on business on the leased property, for which he was paying rent at the rate of $75 per month; that he had consequently lost that sum monthly for 3 1/2 months, and that he had also sustained damages during the same period in the loss of his own services, which were worth $100 per month, and had been further damaged by reason of the fact that he had to pay to employés during that period specified sums of money. Attached to the petition was an exhibit setting forth all of those items, amounting to $840.50. By an amendment to the petition which the court allowed, plaintiff alleged: "That by reason of the said wrongful acts of defendant and the changing of said grade the said storehouse in which petitioner had a leasehold estate became utterly useless by reason of said wrongful acts of said defendant, and worthless for rent or occupation, by which petitioner was actually deprived of the entire use of his property: that said property was worth $75 per month for rent, and by reason of said wrongful acts the said leasehold estate became and was utterly worthless for rent or occupation, by which petitioner lost and was damaged to the amount of $75 per month for three and one-half months." The allowance of this amendment was objected to, but there was no demurrer to the original petition, nor to the same as amended. We will now briefly state and dispose of the questions involved in the case.

1. The first of these questions is whether or not the court erred in allowing the amendment to the plaintiff's petition. The only objection thereto was "that there was not enough in the declaration to allow the amendment." The point argued in the brief of counsel for the plaintiff in error that the amendment set forth a new and...