Heard v. Camp

Russell, J. It is insisted that the amendment sought to set up a new and distinct cause of action. The cause of action was the damage caused through the negligence of the defendant in breaking a window in the office building covered by the policy of insurance. The negligence alleged was that the defendant threw an iron horseshoe at a dog, and thus broke the window. In our opinion the amendment did not change the cause of action, but merely described more accurately and more in detail the window which was broken in the same building. If the missile had hit a man and broken his rib, and the petition had alleged that the rib broken was on his left side, it would hardly be contended that an amendment changing it to the right side would be the assertion of a new cause of action. How, then, can the substitution of another window in the same building, owned by the same person and covered by the same policy, be said to be the substitution of a new cause of action ? The designation of the broken glass by the wrong number was a clerical error, and the amendment merely sought to correct the error. Civil Code (1910), § 5682; Lanier v. Kelly, 6 Ga. App. 738 (65 S. E. 692); Wall v. Schwarz, 9 Ga. App. 845 (72 S. E. 434). This material error rendered subsequent proceedings nugatory, and requires a reversal of the judgment; and therefore it is unnecessary to consider the assignments of error based on the sustaining of the motion to nonsuit. Judgment reversed.