Hurt & Quinn v. Keen
| Decision Date | 15 October 1953 |
| Docket Number | No. 34843,Nos. 1,2,34843,s. 1 |
| Citation | 89 Ga.App. 4,78 S.E.2d 345 |
| Parties | HURT & QUINN, Inc. v. KEEN |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. The statutory or 'Jack Jones' form of pleadings, Ga.L.1847, p. 490, when applicable, is sufficient to set out a cause of action as against both general and special demurrer.
2. When, however, other evidentiary matter is incorporated in the petition, from which inferences may legitimately arise adverse to the plaintiff's right to recover, the
sufficiency of the petition to withstand general demurrer does not rest solely upon the statutory form, but must be tested, as petitions generally, by the requirements of Code, § 81-101 that the plaintiff set forth his cause of action fully, plainly, and distinctly.
3. The petition here, construed against the pleader, fails to limit itself to the statutory open-account form, but sets up other allegations, from which it appears that the plaintiff is suing to recover money which it paid to third parties on a debt owed by the defendant. There being no allegations that such payment was made by virtue of any agreement or contract or because of any legal obligation, the plaintiff appears as a mere volunteer, and fails to show any right to recover such payments back from the defendant. Accordingly, the petition was properly dismissed on general demurrer.
Hurt & Quinn, Inc., filed an action on account against James L. Keen, Jr., in the Superior Court of Laurens County. The petition alleges: By amendment a bill of particulars was added, which included some 30 'accounts,' each of which was headed in accordance with the following form, the names of the insurance companies, and type of account and date differing on the various accounts:
In Account With
Potomac Insurance Co.
Hurt & Quin, Inc.,
General Agents
Standard Bldg., Box 1689
Atlanta 1, Georgia
James L. Keen, Jr.
Agent
Dublin, Ga.
Agency Location
Fire
Kind of Account
April, 1948
Month
Some of the sheets, also, did not carry the word 'Agent' below the defendant's name. Accounts were shown with Potomac Insurance Company, General Accident Fire & Life Assurance Corporation, Ltd., and Homestead Fire Insurance Company. Under the heading on each sheet are listed columns titled 'Inception Date,' 'Policy Number,' 'Assured,' 'Amount,' 'Term in Years,' 'Premiums,' 'Return Premiums.' At the bottom of each sheet are set out 'Net Premiums,' 'Commissions at 25%' and 'Balance due Company.'
Demurrers were filed on the grounds: (1) no cause of action is set out; (2) the petition shows on its face that, if the defendant is indebted to anyone, it is to the named insurance companies, and plaintiff cannot charge the defendant with liability by voluntarily assuming and paying off the alleged indebtedness to such companies; (3) plaintiff sets up no right of subrogation from the named insurance companies as to accounts owed by defendant to them; and on various special grounds which are immaterial here.
The demurrers were all sustained, the petition was dismissed, and the exception is to this judgment.
H. Dale Thompson, Dublin, for plaintiff in error.
Carl K. Nelson, Nelson & Nelson, Dublin, for defendant in error.
1. A motion to dismiss the bill of exceptions was made on the grounds: (1) that there was no sufficient assignment of error; and (2) because no parties are named or designated in the bill of exceptions. The exceptions here begin as follows: 'Be it remembered that in the case of Hurt & Quinn, Inc., against James L. Keen, Jr. * * *' The parties are thereafter referred to as plaintiff and defendant. It is signed, 'H. Dale Thompson, attorney for Hurt & Quinn, plaintiff in error.' Service is acknowledged by the named 'attorneys for defendant in error.' The parties are therefore sufficiently designated to prevent a dismissal of the writ of error. Code § 6-1202, Jordan v. Harber, 172 Ga. 139(1), 157 S.E. 652. Error is assigned as follows: 'To this ruling the plaintiff in error excepted, now excepts to the passing of the order sustaining the general and special demurrers * * * and ordering plaintiff's petition dismissed * * * and assigns the same as error upon the ground that it was contrary to law.' This is a sufficient assignment of error. Whidden v. City of Thomasville, 10 Ga.App. 194(2), 73 S.E. 45; Huxford v. Southern Pine Co. of Ga., 124 Ga. 181(1), 52 S.E. 439. The motion to dismiss the bill of exceptions is without merit.
2. A petition should be dismissed on general demurrer if the allegations thereof and inferences fairly arising therefrom, when construed against the pleader, do not affirmatively show a right to recover against the defendant. Code, § 81-304 and citations. It is true that a plaintiff has a right to bring suit upon an account, attaching to his petition a bill of particulars or statement of the account, and such petition is sufficient, with the right in the plaintiff to recover upon proof of an express or implied promise to pay the same. Southern Ry. Co. v. Grant, 136 Ga. 303(1), 71 S.E. 422. The form of such petition will be sufficient if it follows the short, or 'Jack Jones,' form prescribed by statute, Ga.L.1847, p. 203, and no additional averments are necessary to let in the proof essential to a recovery. Henry Darling, Inc., v. Harvey-Given Co., 40 Ga.App. 771(1), 151 S.E. 518. The short form, however, is not a universal talisman of success in pleading, for, while a petition containing the elements therein set out is, of itself, sufficient to withstand general demurrer, it does not follow that this continues to be the case where, by additional averments, the strength of the declaration is watered down, and other implications, arising from the allegation of further...
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