Central of Georgia Railway Co. v. Sistrunk

Broyles, J. 1. At any time within thirty days after the entry of “default,” the defendant, upon payment of all costs which have accrued, shall be allowed to open the default and file his defense by demurrer, plea, or answer. Civil Code, § 5654. The defendant in this ease, after the default was entered, having complied with the requirements of this code section, the court erred in striking its demurrer at the trial term, for the alleged reason that it was filed too late. 2. Where a petition alleges that a car was damaged to the amount of $500 by fire, caused by the negligence of the defendant, and the proof shows that after the fire the defendant repaired the car, the evidence should also show the difference, if any, in the value of the car before the fire and its value after it was repaired; such difference being the true measure of damages for which the defendant would be liable. 3. Where a petition alleged that a train of the defendant company struck the plaintiff’s private car “with such force that a lighted lamp, fastened to the wall of the [private] car, was thrown from its place and set fire to the car, badly damaging same, burning the floor,” etc., and the undisputed testimony showed that the lamp was not lighted when thrown [684] from the wall, but that it fell into a sulphur fire, which was burning in a pan upon the floor of the car, for the purpose of disinfecting the car, and the lamp, breaking when it fell, set fire to the car, there was a fatal variance between the allegata and the probata; and it was error for the trial judge, in his charge to the jury, to state the above contention of the plaintiff as set forth in the petition, as there was no evidence to support it. Of course the plaintiff has the right to amend his petition so as to make its allegations conform to the proof. Decided August 5, 1915. Action for damages; from city court of Sylvania — Judge Boy-kin. October 30, 1914. Saffold & Jordan, White & Lovett, for plaintiff in error. E. K. Overstreet, contra. 4. The court erred in refusing to grant a new trial. Judgment reversed.