Georgia R. & Banking Co. v. Crawley

• Decision Date: 06 May 1891
• Citation: Georgia R. & Banking Co. v. Crawley, 87 Ga. 191, 13 S.E. 508 (Ga. 1891)
• Parties: Georgia Railroad & Banking Co. v. Crawley.
• Court: Georgia Supreme Court

13 S.E. 508

87 Ga. 191

Georgia Railroad & Banking Co. v. Crawley.

Supreme Court of Georgia

May 6, 1891

Error from superior court, McDuffie county; H. C. Roney, Judge.

Action by W. J. Crawley against the Georgia Railroad & Banking Company for injuries to stock. Verdict and judgment for plaintiff, and defendant brings error. Reversed.

Simmons J.

Crawley sued the railroad company for the killing of two mules alleging in his declaration that the defendant had damaged him $200. The jury found in his favor $278.25. The defendant made a motion for a new trial, on the grounds that the verdict was contrary to the evidence; that the evidence showed that the defendant exercised all ordinary and reasonable care at the time the mules were killed; that the verdict was for a larger sum than that sued for; and that no amendment was made covering the excess, and no order passed requiring the plaintiff to write it off. The trial judge refused to grant the motion upon either or any of the grounds, and the defendant excepted.

We think the court erred in refusing a new trial. The declaration alleged that the plaintiff had been damaged in the sum of $200 by the negligent killing of the mules by the defendant, and the jury by their verdict gave him a larger sum than he claimed in the declaration. The amount of damages claimed in the declaration is the limit of the plaintiff's recovery, and, where the verdict is rendered for a greater sum, the court should set it aside, unless the plaintiff amends his declaration to cover the excess. In this case there was no amendment, and no offer to amend, either before or after the verdict, to cover this excess of damages nor did the court require the plaintiff to write off the excess, as he should have done if he was otherwise satisfied with the verdict. Giles v. Spinks, 64 Ga. 205; 2 Sedg. Dam. (7th Ed.) 614; 5 Amer. & Eng. Enc. Law, 53; 3 Estee, Pl. & Pr. § 4909; 1 Tidd, Pr. 697; Decker v Parsons, 11 Hun, 295; Corning v. Corning, 6 N.Y. 97; Manson v. Robinson, 37 Wis. 339; Kelley v. Third Nat. Bank, 64 Ill. 541. It is claimed, however by counsel for the defendant in error, that this case has been pending nearly 10 years; that the proven value of the mules was $175; and that interest on this amount up to the time of the verdict, at 7 per cent., would make the sum found by the jury; that the jury did not find as the principal debt more than the amount laid in the declaration,...