Groover v. Savannah Bank & Trust Co.

• Decision Date: 17 June 1938
• Docket Number: 12008.
• Parties: GROOVER v. SAVANNAH BANK & TRUST CO.
• Court: Georgia Supreme Court

198 S.E. 217

186 Ga. 476

GROOVER v. SAVANNAH BANK & TRUST CO.

No. 12008.

Supreme Court of Georgia

June 17, 1938

Rehearing Denied July 13, 1938.

Certiorari from Court of Appeals.

Trover suit by Mrs. Elizabeth L. Groover against the Savannah Bank & Trust Company, for damages for an alleged conversion of a corporate stock certificate. The Court of Appeals, 56 Ga.App 27, 192 S.E. 49, reversed the judgment of the city court, and Mrs. Elizabeth L. Groover brings certiorari.

Reversed and remanded to Court of Appeals.

Mandate conformed to in 198 S.E. 223.

Syllabus by the Court.

1. There is no merit in the motion to dismiss the writ of certiorari on the ground that it was improvidently granted.

2. Where two matters are pleaded in the disjunctive, one of which is good and the other not, the petition is to be treated as pleading no more than the latter, under the rule that pleadings must be construed most strongly against the pleader. Accordingly, where any one of several averments alleged in the alternative is insufficient to state a cause of action, or an ingredient thereof, the entire pleading is to that extent bad in substance and subject to general attack. Under these principles, the petition filed in this suit was fatally defective as to a part of the recovery sought; and the Court of Appeals did not err in so ruling.

3. While it appeared from the petition that the defendant bank was protected to the extent of a loan which it made to the plaintiff's husband on his pledge of a stock certificate actually owned by the plaintiff, but as to which she had conferred upon her husband the apparent right of disposition the allegations further showed that pending this loan the defendant bank was put on notice of the plaintiff's ownership, and that it subsequently assisted in a wrongful disposal of her interest. In such circumstances the defendant could be held liable to the plaintiff for the value of such interest, in a proper proceeding.

4. Since it appeared from the allegations that the plaintiff was the owner of the entire interest in the stock, subject only to such claim of the defendant bank as resulted from the loan to her husband and his pledge of the stock as security, and that the bank, after notice of this fact, had assisted in an unauthorized disposition of the stock, whereby it had lost the power to restore the property upon payment of the debt secured, the petition disclosed sufficient right and title in the plaintiff to support the suit as an action in trover to recover damages for such unlawful disposition, the measure of recovery to be determined by the value of the property, less the damage sustained by the bank.

(a) The petition stated a cause of action for a part of the recovery sought, and was therefore not subject to general demurrer.

(b) So far as the decision and judgment of the Court of Appeals were contrary to what has been ruled above and in the opinion filed herewith, they must be held erroneous and reversed.

Lawton & Cunningham, O. E. Bright, and Perry Brannen, all of Savannah, for plaintiff in error.

William L. Clay, Travis & Travis, and R. J. Travis, all of Savannah, for defendant in error.

BELL Justice.

Mrs. Elizabeth L. Groover filed a trover suit against the Savannah Bank & Trust Company, in which she prayed to recover damages for an alleged conversion of a corporate-stock certificate. To this suit the defendant filed general and special demurrers, which the court overruled, and the defendant excepted. The Court of Appeals reversed the judgment so far as it overruled the general demurrer, and consequently did not pass upon the special demurrers. Certiorari was granted on petition of the plaintiff, and the case is now before this court. The facts of the case were fully stated by the Court of Appeals, and will not be repeated here. For a copy of the petition see Savannah Bank & Trust Co. v. Groover, 56 Ga.App. 27, 192 S.E. 49.

1. The defendant in certiorari filed a motion to dismiss the writ on the grounds that it presents no question of public gravity and importance, and contains no sufficient assignment of error. The proper disposition of this motion is the first matter for determination. The petition for certiorari was granted partly for the purpose of considering and reconciling important rules of construction.

The Court of Appeals applied the rule enunciated in the recent case of Doyal v. Russell, 183 Ga. 518, 189 S.E. 32, to the effect that where averments are made in the alternative, and any one of them is insufficient, the entire pleading is to that extent bad in substance and subject to general attack by demurrer or motion. While the same rule had in effect been applied in previous decisions by this court ( Fraser v. Smith & Kelly Co., 136 Ga. 18(2), 70 S.E. 792; Central of Georgia Railway Co. v. Tapley, 145 Ga. 792(3), 89 S.E. 841), it seems to have been stated with more amplitude in the Doyal Case than in any previous Georgia decision. It was further stated in that case that if both alternatives are good in substance, the petition might be subject to special demurrer for duplicity, but that it would not be subject to general demurrer. Compare John A. Roebling's Sons Co. v. Southern Power Co., 142 Ga. 464(2-a), 83 S.E. 138, L.R.A.1915B, 900. In Orr v. Cooledge, 117 Ga. 195(3), 43 S.E. 527, it was said as to duplicity that this form of pleading on the part of a plaintiff 'consists, not in asserting a right to and praying for relief inappropriate to the cause of action set forth in his petition, but in making therein equivocal statements with a view to getting the benefit of two or more inconsistent theories as to his right to recover, or in basing his complaint upon different versions with respect to the facts which gave rise thereto.' See, also, Colquitt v. Georgia Railway & Power Co., 146 Ga. 249, 91 S.E. 70; Smith v. McWhorter, 173 Ga. 255(3), 160 S.E. 250. Duplicity may also be defined as joining in the same count two or more distinct demands, consistent or inconsistent, any one of which would authorize a recovery (Gainesville & Dahlonega Electric Railway Co. v. Austin, 122 Ga. 823, 50 S.E. 983); whereas a pleading is alternative when it alleges substantive facts so disjunctively that it cannot be determined upon which of them the pleader intends to rely as basis for recovery. In either case the petition would be subject to special demurrer, but in the latter case it would also be subject to general demurrer if any one of the alternatives be insufficient. Anderson v. Minneapolis, etc., R. Co., 103 Minn. 224, 114 N.W. 1123, 14 L.R.A.,N.S., 886; 49 C.J. 97, § 91; 21 R.C.L. 451, § 15; 6 Enc. Pl. & Pr. 268.

While the writer dissented from the conclusion reached in the Doyal Case, the rule therein stated is based upon sound reason, and may be applied in a proper case. It is but a corollary of the general principle that if a pleading is indefinite or ambiguous it must be construed most strongly against the pleader. It can not be applied, however, to the extent of sustaining a general demurrer, unless the pleading is actually alternative, nor unless one or more of the matters so pleaded is insufficient to state a cause of action, or an ingredient thereof, as the case may be. It must not be confused with the different and well-settled rule that where several matters are positively and conjunctively alleged as bases for a recovery, and where the petition is ambiguous to the extent that the pleader's intention is not clearly manifest as to what form of action is relied on, the courts, in endeavoring to ascertain his intention, will prima facie presume that his purpose was to serve his best interest, and in the absence of special demurrer will so construe the pleadings as to uphold and not defeat the action. Central Railroad Co. v. Pickett, 87 Ga. 734, 13 S.E. 750; Citizens' & Southern Bank v. Union Warehouse & Compress Co., 157 Ga. 434(7-10), 455, 122 S.E. 327; Cook v. Grimsley, 175 Ga. 138, 143, 165 S.E. 30; Southern Express Co. v. Pope, 5 Ga.App. 689, 697, 63 S.E. 809; King Hardware Co. v. Ennis, 39 Ga.App. 355(4), 147 S.E. 119; Speir v. Westmoreland, 40 Ga.App. 302(3), 149 S.E. 422.

As indicated above, the assignments of error relating to construction, and the apparent necessity of some clarification of the several rules mentioned, were regarded by this court as presenting questions of sufficient public gravity and importance to justify the grant of the writ. Central of Georgia Ry. Co. v. Yesbik, 146 Ga. 620, 91 S.E. 873; Hicks v. Louisville & Nashville R. Co., 182 Ga. 595, 186 S.E. 662. We are also of the opinion that the petition substantially complies with the rule as to the form of assignments of error. The latter, we think, will sufficiently appear in subsequent divisions of this opinion. See Rule 45, 178 Ga. XIV. Accordingly, the petition will not be dismissed as having been improvidently granted.

2. The first assignment of error complains of the application of the rule as stated in the Doyal Case in reference to alternative pleadings. The petitioner in certiorari asserts that the Court of Appeals erred in applying this rule, for the reason among others, that the complaint did not set up two theories and contained no alternative or disjunctive allegations. We can not agree to this contention as related to the entire claim asserted in the petition. On the contrary, we are of the opinion that as applied to the loan of $30,000 which was made by the defendant bank to the plaintiff's husband, the petition is alternative. We are of the further opinion, that, as to one of the two theories upon which the plaintiff relies with reference to this particular matter, the petition was insufficient to state a cause of action, and that the Court of Appeals therefore properly applied...