Reid v. Sinclair Refining Co.

• Decision Date: 15 March 1940
• Docket Number: 27977.
• Citation: 8 S.E.2d 527,62 Ga.App. 198
• Parties: REID v. SINCLAIR REFINING CO.
• Court: Georgia Court of Appeals

8 S.E.2d 527

62 Ga.App. 198

REID v. SINCLAIR REFINING CO.

No. 27977.

Court of Appeals of Georgia, Division No. 1.

March 15, 1940

Rehearing Denied March 30, 1940.

Syllabus by the Court.

Edwards & Edwards, of Buchanan, for plaintiff in error.

H P. Ragland and C. W. Brannon, both of Atlanta, Walter Matthews, of Buchanan, and D. B. Howe, of Tallapoosa, for defendant in error.

MacINTYRE Judge.

Generally speaking, when a case is affirmed, it is ended; but when a new trial is granted, the judgment of the appellate court granting a new trial, in effect, reaches back to the point where the first error complained of was made. A new trial in this case meant the reexamination of the issues of fact in the same court where it was formerly tried. Black's Law Dictionary, 1755; 9 Michie's Encyclopedic Digest of Georgia Reports 578; 2 Pope's Legal Definitions 1065.

There was no demurrer in this case in the former trial. When a motion for new trial was granted by this court in Sinclair Refining Company v. Reid, 60 Ga.App. 119, 3 S.E.2d 121, on the ground that the finding of fact by the jury in their verdict was erroneous, such ruling by this court reached back to the point where the error of the trial court in overruling the motion for new trial first had its effect and rendered the remaining part of the trial nugatory. The point where the error of the trial court first had its effect was where the parties, by joining in the issue of fact, had placed the controversy upon a question of fact involved in the issue on trial in contradistinction to an issue of law, and referred it to the jury. In short, the point where the parties began the introduction of evidence. At this point in the former trial, the plaintiff would have had a right to amend his single count based on ordinary negligence so as to rely on wilful and wanton negligence instead of ordinary negligence for a recovery. King v. Smith, 47 Ga.App. 360, 367, 170 S.E. 546; Foster v. Southern Ry. Co., 42 Ga.App. 830(2), 157 S.E. 371; Kennemer v. Western & Atlantic Railroad, 42 Ga.App. 266(3), 155 S.E. 771. This being true, the plaintiff had a right, before the remittitur from this court was filed in the trial court and before the judgment of this court was made the judgment of the trial court, to tender such an amendment and if it was germane and good in substance, she was entitled to have it allowed, where only a motion to dismiss in the nature of a general demurrer was urged against it.

The question now presented is whether or not the petition, as amended, was subject to a motion to strike, which is in the nature of a general demurrer.

When this case was formerly in this court, as reported in Sinclair Refining Company v. Reid, 60 Ga.App. 119 at page 123, 3 S.E.2d 121, at page 124, it was said that "there are no allegations nor is there any evidence tending to show wilfullness or wantonness on the part of [the] Sinclair [Refining Company]." Relative to the leakage of gas from the pipes under the ground, the following amendment was offered: "That he amends paragraph 6 of the original petition by adding at the end thereof the following as a part of said paragraph to-wit: That immediately after the defendant undertook to repair and reconstruct the pump stand on the 18th of March, 1936, he begun to lose large quantities of gasoline he complained to the agent of the defendant of the loss of gasoline and he told them there was somewhere in the equipment a leakage of gasoline. Plaintiff had no right under the contract to remove any of said equipment so as to make the necessary inspection to find the point in said equipment where said gasoline was escaping, this duty being entirely on the defendant. The defendant refused to make said inspection or to make any effort to discover where the gasoline was leaking from. Plaintiff continued to lose gasoline from the point where the leak was located and he again urged defendant's agent to make the necessary inspection to locate the same. Plaintiff continued to urge defendant to [remove] such part of said equipment as was necessary to find the place from which his gasoline was escaping and defendant told plaintiff that he only 'imagined' that he was losing gas and said 'if we were to dig up all the tanks where operators claimed they were losing gas we would be doing nothing but digging up tanks.' Almost every time the agent of defendant came to plaintiff's station to deliver gas he urged them to make an examination to determine the place from which his gas was escaping and defendant's agent told plaintiff that his claim that gasoline was escaping from any defect in the equipment was something that he imagined and that they did not have time and would not undertake to remove any of said equipment to find any supposed leak. Plaintiff was helpless in that he had no right to remove any of said equipment to find the defect and could only urge the defendant to make the investigations and repairs. The conduct of the defendant with reference to its duty to correct and repair said equipment was such utter disregard of the rights of plaintiff under said circumstances and was conscious indifference to the rights of plaintiff and said defendant acted...