Graham v. Frazier
| Citation | 84 Ga.App. 458,66 S.E.2d 77 |
| Decision Date | 14 June 1951 |
| Docket Number | No. 33586,No. 2,33586,2 |
| Parties | GRAHAM et al. v. FRAZIER |
| Court | United States Court of Appeals (Georgia) |
Syllabus by the Court.
1. This case having been before this court upon general demurrer, and this court having ruled that the petition, as amended, set out a cause of action in trover, and there being evidence tending to substantiate the allegations of the petition, as amended, the verdict for the plaintiff was supported and authorized under the evidence, and was not contrary to law.
2. Where evidence is introduced, without objection, which evidence tends to support the allegations of that portion of the amendment of the defendant's answer which was stricken on plaintiff's demurrer, any error which might have resulted from the striking of such portion of the defendant's amendment to the answer is harmless.
3. Where the court stated the contentions of the parties correctly, though briefly, and told the jury that they might refer to the pleadings which they would have out with them, it is, under the facts hereof, not error to fail to charge more in detail as to such contentions, particularly where, as here, no timely written request is made of the court.
4. There was no error in the failure of the court to charge the jury as to certain contentions of the defendant, Southern Cotton Oil Company, contained in the amended answer of this defendant, a portion of which had been stricken on plaintiff's general demurrer thereto, where the court had in its charge covered the main issue,--as to whether the plaintiff or the defendants had the title or right of possession to the property sought by this trover action, and informed the jury that they had the pleadings out with them which they could read.
5. A plaintiff in trover may elect to recover a money verdict and recover the highest proven value between the time of the conversion and the time of the trial, and the court properly so instructed the jury.
6. The court did not err in recharging the jury at their request that it appearing that the verdict rendered was for less than the highest proven value of the peanuts and less than the total amount of said notes.
7. The charge embodied in special ground 8 of the amended motion for new trial that was a correct and applicable statement of the law and the court did not err in so charging.
8. Evidence as to the value of the peanuts between the date of the conversion and the time of the trial was properly admitted, even though it appeared that same were worthless on September 1, 1949.
9. There was no such issue as to 'commingling' of property as to demand a charge of this principle of law.
This case arose by virtue of an action in trover brought by Richard Frazier, as transferee of the Hartford Accident & Indemnity Company, transferee of the Bank of Commerce, as to certain notes of the Farmer's Exchange, Inc. which notes were secured by certain warehouse or custodian receipts, issued by said Farmer's Exchange, Inc., to said Bank of Commerce, covering described peanuts in the warehouse of The Farmer's Exchange. These warehouse or custodian receipts recited that the warehouseman had received a designated amount of described peanuts for the account of said bank for storage in its warehouse, which peanuts were deliverable to the order in writing of said bank, upon surrender of the receipt properly endorsed. The action was against Frank A. Graham and against the Southern Cotton Oil Company, the former being alleged as the agent of the oil company as to these peanuts, to recover certain of the peanuts which it was claimed belonged to Frazier and were in possession of the defendants. The demurrers to the plaintiff's petition, as amended, were overruled and the defendants excepted. The case came to this court upon writ of error to this ruling, and there was an affirmance of the judgment by this court with direction that the plaintiff amend his petition within 10 days as to certain dates. See Graham v. Frazier, 82 Ga.App. 185, 60 S.E.2d 833. Reference is made to the above decision for a statement of the plaintiff's case and contentions.
The case came on for trial and resulted in a verdict and judgment in favor of the plaintiff, Frazier, for $25,228.91, as the value of the peanuts alleged and contended by the plaintiff to have been converted by the defendants. The defendants filed their motion for a new trial upon the general grounds, and thereafter by amendment added certain special grounds, which will be specifically set out and dealt with in the accompanying opinion. The trial judge overruled said motion for a new trial, as amended, and denied a new trial to the defendants. The case is now before this court upon exception to this judgment.
Smith, Kilpatrick, Cody, Rogers & McClatchey, Atlanta, for plaintiff in error.
Farkas & Burt, James V. Davis, Edmund A. Landau, Jr., Albany, for defendant in error.
1. By an amendment to its answer the defendant Cotton Oil Company set up that (1) it had advanced to the Farmer's Exchange, Inc. the money with which to purchase the peanuts involved in this litigation and same were purchased from the growers with its money and therefore the title to same was in it and not vested in said exchange; that (2) there was no valid transfer of the receipts and notes by said Hartford Accident and Indemnity Company to the plaintiff, Frazier, same being merely a subterfuge in order to substitute Frazier as plaintiff in the place of said insurance company, and the real plaintiff is the indemnity company and not Frazier, who has no interest in any recovery; and that (3) Frazier was during the period from September 1945 through December of that year employed by the Farmer's Exchange, Inc. and was also a party defendant in an action by the Bank of Commerce against said indemnity company in the United States District Court of the Middle District of Georgia in which a verdict and judgment were rendered in favor of said bank and against the defendants, and adjudicating that Frazier fraudulently converted the peanuts to which he now claims title. The plaintiff demurred to the paragraphs of the amended answer embracing the above contentions as being 'irrelevant and immaterial' and as setting forth 'no defense' to this action in trover and that same 'can in no way affect the rights of the plaintiff in this case.' The trial court sustained these grounds of demurrer and struck paragraphs 7, 8, 10, 15, 16, 17, 18 and 19 of the answer of said oil company, embracing in the main the above contentions. To this judgment, the defendant cotton oil company excepted pendente lite, assigning error thereon in the bill of exceptions in this case.
Even if it appears that the court, upon demurrer interposed by the plaintiff, improperly sustained same and struck a portion of the defendants' amended answer, and there is a final judgment and verdict for the plaintiff, such ruling on the demurrer will not result in a reversal, where it appears that evidence was introduced tending to substantiate the facts set out in the stricken portion of the amendment to the answer and therefore the defendant obtained the full benefit of the defense or contentions made by the defendant in the portion of the amendment to answer, which was stricken. See Fidelity & Deposit Company v. Norwood, 38 Ga.App. 534, 144 S.E. 387. See also Northwestern Mutual Life Ins. Co. v. Suttles, 201 Ga. 84, 105, 38 S.E.2d 786, and cit. It appears from the record, and as appears from this opinion as a whole, that the defendant received the full benefit of the three contentions or defenses of the Southern Cotton Oil Company embodied in the portion of the amendment to the answer stricken by the court. In these circumstances, we make no ruling as to whether or not the order of the trial judge striking such portion of the amended answer was erroneous, but we do hold that even if error, no harm resulted therefrom to the defendant or either of them and the case will not be reversed for that reason. Had these portions of the amended answer not been stricken, we do not see how the result could have been affected. The defendants received the full benefit thereof when evidence was introduced in support thereof. In ruling in the present case and in the former decision, this court has ruled on the questions raised by these portions of the amended answer.
2. The defendants insist that the evidence did not authorize a verdict in favor of the plaintiff and that the verdict rendered by the jury against them for $25,228.91 was therefore contrary to law and without evidence to support it. As we have noted, this case is now in this court for the second appearance. The first time the case was here the judgment excepted to was the overruling by the trial court of certain general demurrers to the petition of the plaintiff, as amended, and this court affirmed that judgment, holding that the plaintiff was entitled to proceed in trover against the defendants for the peanuts in that the plaintiff obtained title to the peanuts and right to possession thereof by virtue of the issuance...
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