Southern Bell Tel. & Tel. Co. v. Earle

• Decision Date: 13 August 1903
• Citation: 45 S.E. 319,118 Ga. 506
• Parties: SOUTHERN BELL TELEPHONE & TELEGRAPH CO. v. EARLE.
• Court: Georgia Supreme Court

45 S.E. 319

118 Ga. 506

SOUTHERN BELL TELEPHONE & TELEGRAPH CO. v. EARLE.

Supreme Court of Georgia

August 13, 1903

Syllabus by the Court.

1. Prior to the act approved December 13, 1902 (Acts 1902, p 117), if a defendant in a suit brought in the city court of Atlanta failed to file his defense on or before the first day of the term to which the suit was returnable, he lost his right to file any defense to the suit, and the judge had no authority to allow him to do so.

2. Where the plaintiff in such a case entered into an agreement which was entirely devoid of consideration, that a plea and demurrer which were in reality filed on the second day of the term might be filed as of date the first day of the term such agreement was revocable at the will of the party making it.

3. Suit was filed against the Southern Bell Telephone & Telegraph Company, and the defendant properly served. The return of service recited that the officer had "served the defendant, Southern Bell Telephone Company," by serving its superintendent, naming him. Subsequently the return was, by leave of court, amended so as to set out the name of the defendant corporation correctly. Held, that the original return was valid, and did not need amendment, and the defendant was not excused from filing its defense until after the return had been amended.

4. In a suit for unliquidated damages, brought in the city court of Atlanta, where the defendant fails to file any defense within the time required by law, he is precluded from contesting his liability as set out in the petition, and the only question to be determined by the jury is the amount of damage which the plaintiff has sustained.

5. Where a petition is ambiguous in failing to make clear whether the cause of action declared on is one sounding in contract or in tort, but no demurrer is filed, and the allegations and prayers of the petition, taken all together, manifest that it was the intention of the plaintiff to sue for a tort growing out of the breach of a contract, it is not error to treat the suit as an action ex delicto, and to charge, where the evidence warrants it, the law as to punitive damages. Nor is it cause for a reversal in such a case, where no plea has been filed within the time required by law, to charge that, in any event, the plaintiff would be entitled to nominal damages, it clearly appearing that such a charge, whether strictly correct or not, could not have been harmful to the defendant.

6. In the trial of an action for damages growing out of the breach of a duty arising from a contract, where, owing to the defendant's failure to plead, his liability is incontestably established, it is not error to charge the jury that the plaintiff is entitled to recover for all the damages sustained by him up to the time of the trial.

Error from City Court of Atlanta; H. M. Reid, Judge.

Action by J. A. Earle against the Southern Bell Telephone & Telegraph Company. Judgment for defendant. Plaintiff brings error. Affirmed.

Burton Smith, Dorsey Brewster & Howell, George Gordon, and Arthur Heyman, for plaintiff in error.

Eb. T. Williams, E. D. Thomas, and Westmoreland Bros., for defendant in error.

CANDLER J.

The petition filed by the plaintiff in the court below was, in substance, as follows: On or about December 20, 1901 petitioner signed a contract with the Southern Bell Telephone & Telegraph Company, a New York corporation with main offices in Atlanta, Ga., by the terms of which the company bound itself to furnish him with a telephone at Kirkwood, Ga., at $5.25 per month. Petitioner is and was doing a general merchandise and grocery business at Kirkwood, and is largely dependent upon the Bell telephone service for orders from his customers. The defendant company violated its contract, and refused to allow him the use of its telephone system. Petitioner has several times offered to pay for the use of the telephone, but the company has declined to furnish him with telephone service unless he pays it $30 due it by one Coffee, who formerly occupied the premises where petitioner's store is now located. Petitioner has nothing to do with Coffee's debts, and is in no way responsible for them. He is unable to set out a copy of the contract referred to, but the defendant has a copy, and he prays oyer of the contract from the defendant. It was alleged that the petitioner had been greatly damaged by reason of the violation of the contract, owing to the fact that his customers could not communicate with him, and that he had been greatly humiliated on account of the impression which had been made on his customers that he had not sufficient capital to enable him to carry on his business. The conduct of the defendant was alleged to have been willful and wanton, and the petition prayed for punitive as well as actual damages. This petition was filed in the clerk's office on February 20, 1902, and was made returnable to the May term, 1902, of the city court of Atlanta. The entry of service was in the following language: "Georgia, Fulton County. Served the defendant, Southern Bell Telephone Company, a corporation, by serving R. L. West, Supt., by leaving a copy of the within writ and process with him in person, at the office and place of doing business of said corporation in Fulton county, Georgia. This February 21st, 1902." On June 25, 1902, the court allowed the officer to amend his entry of service, as follows: "I hereby amend my entry of service in this case by adding after the word "Telephone' and before the word 'Company,' the words 'and Telegraph.' This June 25, 1902." The May term, 1902, of the city court of Atlanta began on May 5th, and on that day no plea or demurrer to the petition had been filed. On May 6, 1902, the defendant filed in the clerk's office a plea and a demurrer, and an agreement was entered into between counsel for both sides as follows: "It is agreed that the plea and demurrer in the above-stated case shall be filed as of date May 5, 1902. This May 6, 1902." In accordance with this agreement, the entry of filing on the two papers was dated May 5, 1902. Subsequently, and before the case came on to be tried, counsel for the plaintiff withdrew his consent that the plea and demurrer should be filed as of date May 5th, and so notified opposing counsel and the court, and at the trial he made a motion to strike the plea and demurrer, which was granted. Evidence was then introduced by the plaintiff to prove the amount of his damages. The defendant offered no evidence, but at the conclusion of that introduced by the plaintiff moved to grant a nonsuit "on the ground that the plaintiff had not made out his case, had not proved the material allegations of his petition, and had not shown the right to recover any damages." The court declined to grant a nonsuit, and made the following statement in the presence of the jury: "I think there is a contract alleged, and the refusal to let him use the telephone after making the contract, and the only thing to be inquired about is...