Lamb v. Howard
| Decision Date | 21 September 1916 |
| Docket Number | 670. |
| Citation | 90 S.E. 63,145 Ga. 847 |
| Parties | LAMB v. HOWARD. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
A petition alleging that the plaintiff shipped to his own order certain machinery over the line of railroad of the defendant company to a station in another county in this state, that without his order or consent the property was unlawfully delivered to a third person, and that this unlawful delivery amounted to a conversion, and praying for a judgment for the value of the property with interest from the date of the unlawful conversion, was an action ex delicto, and could not be changed by amendment into an action ex contractu.
Where a petition containing the allegations just indicated was demurred to upon the ground, among others, that the courts of the county in which the alleged wrongful conversion took place had jurisdiction of the suit, and not the superior court of another county in which the suit was brought, and the court passed an order sustaining the demurrer, "with ten days' leave to amend," and the plaintiff added an amendment seeking to convert the case into one ex contractu, and this amendment was allowed subject to demurrer, the court erred in overruling the defendant's general demurrer to the amendment, and to the petition as amended, based upon the ground that the amendment added a new cause of action.
Additional Syllabus by Editorial Staff.
A wrongful conversion of property is an "injury to property" within section 2798, Civ. Code 1910, providing that "all railroad companies shall be sued in the county in which the cause of action originated, by any one whose person or property has been injured by such railroad company its officers, agents, or employés, for the purpose of recovering damages for such injuries."
Error from Superior Court, Fulton County; Geo. L. Bell, Judge.
Action by George P. Howard against E. T. Lamb, receiver. There was a judgment for plaintiff, and defendant brings error. Reversed.
Stiles Hopkins, Rosser & Brandon, and Brandon & Hynds, all of Atlanta, for plaintiff in error.
Geo Westmoreland and Geo. T. Northen, both of Atlanta, for defendant in error.
BECK J. (after stating the facts as above).
We are of the opinion that this was clearly an action ex delicto. As will be seen by reading the original petition the plaintiff alleges that the defendant railroad company unlawfully delivered the property in controversy, not to the plaintiff or his order but to a certain corporation known as the Senoia Duck Mills and that this delivery without an order from the plaintiff and without his consent was an unlawful conversion by the carrier of the property of the plaintiff; that this property, the machinery shipped, which was unlawfully delivered to the Duck Mills and thus converted by the carrier was of the value of $44,663; and plaintiff asks judgment for this amount as the value of the property at the time of the alleged unlawful conversion, with interest thereon from the date of the conversion. Thus in apt phraseology the pleader stated a complete cause of action ex delicto.
That being true it was not competent by an amendment to change the action into one arising ex contractu, and objection to the amendment based upon the ground that by the amendment the plaintiff sought to set up a new cause of action should have been sustained. Sharpe v....
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