Goodyear Clearwater Mills v. Wheeler

• Decision Date: 16 July 1948
• Docket Number: 31883.
• Citation: 49 S.E.2d 184,77 Ga.App. 570
• Parties: GOODYEAR CLEARWATER MILLS v. WHEELER.
• Court: Georgia Court of Appeals

49 S.E.2d 184

77 Ga.App. 570

GOODYEAR CLEARWATER MILLS v. WHEELER.

No. 31883.

Court of Appeals of Georgia, Division Nos. 1, 2.

July 16, 1948

Rehearing Denied July 28, 1948.

Syllabus by the Court.

1. The general and special demurrers were properly overruled under the concept of such pleadings stated in division one of the opinion.

2. It was error in the instant case to charge Code, § 38-111 relative to positive and negative testimony, without explaining that the rule applies only when the witnesses are of equal credibility.

3. The evidence objected to in special ground one of the amended motion for a new trial was admissible as a part of the res gestae. MacINTYRE, P. J., and FELTON, J., disagree with the ruling in this headnote.

4. The evidence objected to in special ground two of the amended motion for a new trial shows no reversible error.

5. 'The essential element of bailment is possession in the bailee, and his duties of reasonable care spring out of his possession.' Thompson v. Mobile Light & R. Co., 211 Ala. 525, 101 So. 177(3), 34 A.L.R. 921.

6. 'Delivery under which the bailee acquires an independent and temporarily exclusive possession is essential to the contract of bailment.'

7. Special grounds three and four of the amended motion for a new trial were based upon allegedly erroneous charges on the law of bailment, on the ground that there was no evidence to show a bailment. A majority of the court hold that the grounds urged were not meritorious. MacINTYRE, P. J., and FELTON, J., disagree with the ruling in this headnote.

8. The case is reversed solely on the ruling stated in headnote two.

MacINTYRE P.J., and FELTON, J., dissenting in part.

The present suit was filed on April 28, 1947, by Albert Wheeler, the plaintiff, against the Goodyear Clearwater Mills, the defendant, who is here plaintiff in error, and came on to be tried in the City Court of Polk County on October 8, 1947. The suit, having been tried and resolved in favor of the plaintiff, is here on exceptions to the judgment of the court below on the motion for a new trial and on exceptions pendente lite to the judgment of the court overruling defendant's general and special demurrers to the plaintiff's amended petition.

The plaintiff's petition as amended alleged in substance: That the defendant is a corporation by whom the plaintiff is employed; that the defendant at the time when the incident in issue occurred was operating at full capacity and employed persons living at some distance from its plant in Rockmart, Georgia; that the defendant furnished no transportation for said workers and it was necessary for them to drive to work in their own cars; that the defendant maintained an automobile parking lot within a fence which was erected around the plant with a gate for ingress and egress thereto; '8. That for several years past, and at all times herein mentioned, defendant kept a private policeman stationed at the entrance gate aforesaid for the purpose of permitting employees to pass through the gate at the change of shifts, then close said gate and to watch over and maintain a constant vigilance thereat and over said parking lot and the automobiles therein; 9. That on the 12th day of October, 1946, at about seven minutes before midnight petitioner drove his automobile through the gate and onto the parking lot and removed his switch keys and went into the factory ready to begin work at midnight, and, that when said automobile went through the gate onto the said parking lot, aforesaid, the gateman, who is a private policeman for said defendant, was on duty at the gate and admitted entrance by petitioner and his said automobile to the parking lot at the time and in the manner aforesaid'; that plaintiff's automobile was a 1940 Model Chevrolet, worth $1,200.00; that one Buford McDonald, who was employed by defendant as a private policeman, at some time during the shift in question was on duty at the gate and admitted one or more men or boys, whose identity are unknown to the plaintiff, into the parking lot through the gate and allowed them to remove therefrom the plaintiff's automobile; '12. That for the past several years, and at all times herein mentioned, defendant had adhered to a strict requirement that employees must park their automobiles on the aforesaid parking lot within the confines of said steel fence under directions and supervision of the gateman, who opened the gate in each shift change, and after the change of shifts immediately closed same; 15. That when said petitioner had driven his automobile through the gate onto the parking lot, aforesaid, and left same to begin work for defendant corporation, at the time and in the manner aforesaid, the said defendant thereupon was entrusted with the care, custody and control over said automobile; 16. Because of defendant's established practice and policy in furnishing police protection over said automobiles, including this [plaintiff's] private vehicle while the owners thereof were within the factory, said defendant through its agents, servants and employees, did assume care, custody and control over said vehicle, and your petitioner had a right to expect and did expect his automobile to remain on the parking lot under said police protection and within the confines of said parking lot fence subject to removal by your petitioner after he had completed his work;' and that defendant's agent was grossly negligent in allowing said persons to take plaintiff's automobile.

To this petition there was filed a general demurrer and a special demurrer to paragraph 12 thereof on the grounds '(a) that there is no allegation as to what direction and supervision, if any, the gateman exercised over the parking of automobiles on the parking lot other than to open the gate at each shift change and to close the gate at the end of each change of shift, and (b) because the plaintiff fails to allege in said paragraph or elsewhere in said petition as to what the employees were required to do in parking said automobiles on said parking lot under the direction and supervision of the gateman and it is not stated in said paragraph or in said petition as to what official or agent of the defendant made or enforced the requirement referred to therein.' Paragraphs 15 and 16 of the petition were also specially demurred to 'because the allegations therein state mere conclusions of the pleader and the facts set forth in said paragraphs and in said petition do not justify the conclusions stated therein.'

Neel & Ault, of Cartersville, for plaintiff in error.

Cecil D. Franklin, of Rockmart, for defendant in error.

MacINTYRE, Presiding Judge.

1. A petition is subject to general demurrer if all of the essential elements of the cause of action are not alleged for if one is lacking the petition is not sufficient. In other words, to withstand a general demurrer all such essential elements must be alleged by setting forth evidentiary or preliminary facts which would demand, as a matter of law, a conclusion that a cause of action existed. See Bivins v. Tucker, 41 Ga.App. 771, 774, 154 S.E. 820.

While a petition is sufficient to withstand a general demurrer if all the essential elements constituting the gist of the cause of action are alleged, a special demurrer may require each of these essential elements to be set forth plainly, fully and distinctly, so as to compel the pleader to disclose whether he really has a cause of action and to enable the plaintiff's adversary to understand the exact nature of the claims made against him and thus enable him to prepare his defense. The plaintiff does not have to "spread out' in his petition an exhaustive statement of the exact evidence upon which he will rely for recovery.' Hobbs v. Holliman, 74 Ga.App. 735, 740, 41 S.E.2d 332, 336, et cit.; Tufts v. Threlkeld, 31 Ga.App. 452, 462, 121 S.E. 120. 'Reasonable definiteness and certainty in pleading is all that is required; and factitious demands by special demurrer should not be encouraged. Indeed, it is the opinion of the members of this court that this 'critic,' not of the old school, but of recent times--special demurrer--has lately been given much greater recognition in our courts than his importance or his usefulness has ever deserved.' Busby v. Marshall, 3 Ga.App. 764, 60 S.E. 376.

The petition states clearly the facts upon which liability is claimed. The test is: Would these facts, if proven, support a finding in favor of the plaintiff? Applying this test to the petition we do not think that it is subject to the general demurrer; and considering the allegations of paragraphs 12, 15, and 16, to which special demurrers were filed, together with the allegations of the entire petition, we do not think such special demurrers urged to these paragraphs, as shown in the statement of facts, are meritorious. The court did not err in overruling all of the demurrers, both general and special.

2. The jury, during their deliberations, returned to the court room and inquired of the court whether there was any evidence that plaintiff's car was parked in the parking lot. The court informed the jury that there was evidence that the plaintiff parked in the parking lot, but that the matter of evidence was for the jury. Later, the court, upon his own motion, no further request for recharge having been made by the jury, called the jury back and in response to their previous inquiry charged them as follows 'The existence of a fact testified to by one positive witness is to be believed, rather than that such fact did not exist because many witnesses who had the same opportunity of observation swear that they did not see or know of its having existed. This rule shall not apply when, two parties having equal facilities for seeing or hearing a...