Neal v. Davis Foundry & Machine Works

Lumpkin, J. (After stating the foregoing facts.) 1. Where a petition is verified, the answer should also be verified. .Civil Code, §5055. An omission to verify the answer is curable, and on proper application the presiding judge will allow the verification to be added even after the first term. Ward v. Frick Co., 95 Ga. 804 (22 S. E. 899); Norton v. Scruggs, 108 Ga. 802 (34 S. E. 166); Rogers v. Caldwell, 122 Ga. 279 (50 S. E. 95); Patton v. Bank of LaFayette, 124 Ga. 965 (53 S. E. 664, 5 L. R. A. (N. S.) 592). It was therefore proper to overrule a motion, made at the trial, 'that the answer should be stricken and the case be treated as in default, and to allow the defendant to add to the answer a verification. 2, 3. A special demurrer to the answer and- cross-petition was filed at the second term of court, and was overruled. It would seem, from the order of recitals in the bill of exceptions, that this happened before the motion to strike the answer for want of verification was made, and before the amendment adding the verification was allowed. If so, it was too late to specially demur on the trial, no reason appearing why such demurrer could not have been filed and disposed of at the first term. It is contended that the allowance of the addition of the verification, by way of amendment, opened the answer and cross-action to demurrer. Section 5068 of the Civil Code declares that “An amendment to a petition, or plea, or answer, which materially changes the Cause of action or defense, opens the petition, plea, or answer, as amended, to demurrer or plea.” It is not every possible amendment that throws open the door to a special demurrer, but only one of the character described. The mere addition of a verification to the answer and cross-petition, allowed by the court when the point was raised that the original petition was verified and the answer was not so, was not an amendment which materially changed the cause of action or defense within the meaning of the law, so as to authorize the filing of a special demurrer to particular allegations contained in the answer and cross-action. The demurrer having been filed too late, the proper practice would have been to decline to hear it at all and to order [704] it stricken. But no assignment of error makes this specific question; and as the demurrer ought not to have been sustained when it was made, and as the practical effect'in this case is the same whether it be stricken or overruled, we will not reverse the judgment. Green v. Hambrick, 118 Ga. 569 (45 S. E. 420). 4. Evidence was introduced by the defendant to show that it kept on hand a number of wooden patterns, some of which were ruined and some injured by reason of the leaking of the roof, resulting from the improper manner in which it was put on by the plaintiff. Objection was made to this evidence, on the ground that the pleadings made no issue which authorized it. As against the objection made, the evidence was admissible. The answer of the defendant, in the nature of a cross-action, alleged that it was having the buildings constructed for a foundry and machine-shop, and that this was known to the plaintiff; that he also knew that the defendant would store large numbers of valuable patterns in said buildings, and would make molds for the purpose of making castings ; that the patterns were made of wood and glued together, that wetting them dissolved the glue and caused the pieces of wood to come apart and warp; and that the patterns were injured, damaged and spoiled, to an amount named. Having held that the special demurrer to this cross-action was not in due time, these allegations stood as if not demurred to, and they were sufficient to furnish a basis for the admission of the evidence to which objection was made. 5. Objection was also made to certain charges of the court on the same subject, on the ground that they were not authorized by the pleadings, or that the damages referred to “were not properly set out in its plea,” or because of similar objections. For the reason just above stated these objections are not good. It is not the function of the charge to review the pleadings as to the fullness of the allegations. To do so would be in effect to require the court in his charge to deal with the allegations as if upon special demurrer and submit to the jury the question thus raised. 6. Other grounds of objection were urged to some of the charges; but when the parts to which exception was taken are read in the light of the evidence and of the entire charge, we do not think they require a new trial. In one or two instances perhaps there may have been slight inadvertences of expression, but they are not [705] of such consequence as to necessitate a reversal under the facts of this case. We do not think that the charges were such as to mislead the jury into finding damages other than those claimed by the defendant in its pleadings. If the plaintiff desired more specific instruction in terms-limiting the damages recoverable by the defendant to those which were alleged in the cross-action, he might properly, have invoked such an instruction on that subject. 7. A witness was allowed to testify that he had made a careful estimate of what it would cost to replace the injured patterns and an inventory of the damages, and that it amounted to $1,005.00. But it.further appeared that he gave the items of each individual pattern and number and list of the patterns and explained in what the damage consisted; and that he also testified as to the damage in the way of extra labor and time and material in covering up and moving patterns during rain; and that the items thus given in detail aggregated the amount of $1,005.00. While a witness can not estimate damages in a lump sum, over objection, yet where he has given the details, with the amounts, the mere adding them up ■ and stating the total furnishes no ground for a new trial. 8. One ground of the motion for a new trial was not referred to in the brief of the plaintiff in error, and it will- be treated as waived. A careful scrutiny of each of the grounds has brought us to the conclusion that a reversal is not required. Judgment affirmed. All the Justices concur.