Harris v. Cleghorn

Candler, J. The state of facts laid by the plaintiff in her declaration would have warranted a recovery either in tort or upon the contract alleged; but it is clear that she can not maintain both species of action in the same petition. This is but the application of an elementary principle, and requires no citation of au [316] thority. Had she so desired, the plaintiff might, after filing her petition, have elected what remedy she would pursue, and by striking from the petition the allegations and prayers appropriate to the alternative remedy, have so amended the declaration as to make it withstand the demurrer filed. Seymore v. Rice, 94 Ga. 183. She not only failed to take this step, but, by the amendment which she did file, made more positive her determination to hold on to both remedies, that in tort and that upon the contract. The amendment merely made a bad matter worse. It is clear that the demurrer should have been sustained. As it is within the power of the plaintiff, after the remittitur from this court is filed in the court below-, to so amend her petition that it will not be open to the objection pointed out in the foregoing, thus necessitating another trial of the case, attention will be called to other errors committed when the case was tried the first time, so that a repetition of them may be avoided. The court charged the jury as follows: “ If you find from the evidence in this case that the defendant broke the contract (as heretofore explained to you), you may consider humiliation and wounded feelings, if proven, in arriving at the amount of damages plaintiff would be entitled to recover, growing out of the breach of said contract, provided the humiliation was directly connected with said breach. And in estimating this damage the only rule is the enlightened consciences of impartial jurors.” In the light of what has been said with reference, to the demurrer, it is only necessary to add that the charge set out- is plainly erroneous. It was also error to charge the jury the provisions of the Civil Code, § 3132, relative to the duration of tenancy where no time is specified by the parties to the contract of rental; for the plaintiff in this case declared upon an express contract of rental for one year, and should not have the benefit of legal principles applicable to an entirely different state of facts from that laid in her petition. Judgment reversed. All the Justices concur.