Mayer v. Southern Express Co

• Decision Date: 24 March 1916
• Docket Number: (No. 7008.)
• Citation: 17 Ga.App. 744,88 S.E. 403
• Parties: MAYER. v. SOUTHERN EXPRESS CO.
• Court: Georgia Court of Appeals

17 Ga.App. 744

88 S.E. 403

MAYER.

v.SOUTHERN EXPRESS CO.

(No. 7008.)

Court of Appeals of Georgia.

March 24, 1916.

(Syllabus by the Court.)

Error from Superior Court, Dougherty County; E. E. Cox, Judge.

Action by Daniel Mayer against the Southern Express Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Peacock & Gardner, of Albany, for plaintiff in error.

Pope & Bennet, of Albany, for defendant in error.

WADE, J. Mayer brought suit in a justice's court against the Southern Express Company. The usual summons requiring the presence of the defendant was issued, and the following statement was attached thereto:

"Sept. 4, 1913, to 328 lbs. pork spoiled in transit, 10 cents, $32.80."

The defendant demurred generally to the summons, and demurred specially on the grounds that it was not alleged why and in what way the defendant was indebted to the plaintiff, that the point from whence the pork was shipped or its destination, the time of its arrival at destination, or the time of its delivery to the plaintiff was not alleged, and that it was not alleged how the pork sued for was "spoiled, " or how it became spoiled. The plaintiff thereupon amended the statement attached to the summons, by adding the following:

"Said shipment of meat was made by J. T. Stewart and was shipped from Camilla to Albany, Ga., and arrived on September 3, 1913, and was not delivered until September 4, 1913, about 8 o'clock a. m."

The defendant still insisted upon its demurrer after this amendment had been allowed, and the justice of the peace sustained the demurrer and dismissed the action. A writ of certiorari was thereupon sued out, and upon the hearing the judge of the superior court overruled the certiorari.

It is well settled by repeated adjudications of the Supreme Court and of this court that great nicety of pleading is not required in justice's courts, and it is the established policy of our law that section 4715 of the Civil Code of 1910 (section 4110 of the Civil Code of 1895) must be liberally construed, and pleadings in a justice's court are generally sufficient if the defendant is informed thereby of the nature of the plaintiff's demand against him. Hendrix v. Elliott, 2 Ga. App. 301 (2), 58 S. E. 495. See, also, Georgia So. Ry. Co. v. Barfield, 1 Ga. App. 208, 58 S. E. 236. Nevertheless in Powell v. Alford, 113 Ga. 979, 39 S. E. 449, the Supreme Court held as follows:

"Under section 4116 of the Civil Code, which prescribes how suits in a justice's court shall be brought, 'such justice or notary public shall attach a copy of the note, account, or cause of action sued on to the summons at the time the same is issued.' The above-quoted language was taken from the act of September 21, 1881. Acts 1880-81, p. 66. Since the passage of that act the plaintiff in an action in a justice's court must set forth with some degree of certainty his cause of action, and, having done so, must recover, if at all, upon the cause as laid, and cannot recover upon a different and distinct ground of liability."

In Thomas & Blake v. Forsyth Chair Co., 119 Ga. 693, 46 S. E. 869, the Supreme Court, speaking through Justice Turner, said:

"The exhibit attached to the summons was in no sense a bill of particulars, nor did it furnish to the defendants reasonable notice as to the character [italics ours] of the plaintiff's demand."

It appears to be recognized by counsel on both sides of this case that, notwithstanding the laxity of pleading permitted in justice's courts, the nature of the plaintiff's demand must either appear from the summons itself or from the copy of the demand sued upon, which may be attached thereto. The only question therefore is whether the nature of the plaintiff's demand in this case sufficiently appears from the exhibit attached to the summons.

The original statement attached to the summons recites that 328 pounds of pork was bought by the Southern Express Company of Daniel Mayer on September 4, 1913, which was "spoiled while in transit, " and was of the value of $32.80. From this it would be impossible to determine whether recovery was sought for the purchase price of the pork sold by the plaintiff to the defendant, or whether recovery was sought because in some way not suggested the pork bought from Daniel Mayer by the defendant was spoiled while in transit. The amendment perhaps makes it clear that the amount sued for was claimed because the pork was spoiled while in transit between Camilla and Albany, Ga., but still leaves the exact nature of the complaint uncertain, and also makes uncertain the plaintiff's right to maintain the action. It does not appear, unless by inference, that the defendant was the carrier, nor is it alleged how the liability of the defendant arose, even conceding that it was, in fact, the carrier to whom was intrusted the shipment of the meat from Camilla to Albany, Ga. If the defendant had, in fact, bought the pork at 10 cents per pound, as appears from the statement as amended, it could not be liable except for the purchase price; and, on the other hand, it cannot be determined whether the plaintiff sought a recovery because the pork was spoiled when it arrived at destination, and because it was claimed that the defendant was liable therefor as an insurer. If it be that the plaintiff claims damages because his pork was spoiled in transit through negligence on the part of the defendant, this fact was not suggested remotely, nor is it negatived by the allegation showing the arrival of the shipment on September 3, 1913, and its delivery the...