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Action for damages. Fulton Civil Court. Before Judge Henson.
1. "A general demurrer goes to the whole pleading to which it is addressed, and should be overruled if any part thereof is good in substance. Blaylock v. Hackel, 164 Ga. 257 (5) (138 SE 333)." Calbeck v. Herrington, 169 Ga. 869, 873 (152 SE 53). "To be subject to general demurrer, a petition must be utterly lifeless. If there is a spark of life in it, it is good against such a demurrer." Medlock v. Aycock, 16 Ga. App. 813 (1) (86 SE 455). See also Midland Properties Co. v. Farmer, 100 Ga. App. 8, 33 (110 SE2d 100).
(a) While on demurrer pleadings are construed most strongly against the pleader, yet they must be read as a whole and given their natural intendment. Georgia Power Co. v. Leonard, 187 Ga. 608, 614 (1 SE2d 579).
2. A general demurrer will not reach the question of whether the proper measure of damages is alleged in a petition. See Crawford v. Sumerau, 100 Ga. App. 499 (111 SE2d 746), and citations.
4. In the absence of a statute requiring a different interpretation, where personal property is leased the lessee of such property is a bailee for hire of such property, and an allegation that the plaintiff leased certain personal property from the owner will be construed as an allegation that the plaintiff was a bailee for hire of such property.
5. The petition alleged a cause of action against the defendant, and the trial court erred in sustaining the defendant's general demurrer and dismissing the petition.
Southern Bonded Warehouse Co. sued Roadway Express, Inc., to recover for damages occasioned when a truck owned by the defendant, and being operated by its servant in the scope of the defendant's business, negligently collided with the rear of a truck being operated by the plaintiff's servant. Damages to the truck and its cargo were alleged and a recovery was sought for both items of damage. The plaintiff's petition did not allege, either as to the truck or cargo, ownership in itself. No allegation as to ownership of the cargo was alleged and it was affirmatively alleged that Southern Truck & Auto Leasing Co. owned the truck and that the plaintiff was in possession of the truck by virtue of a lease with the owner. The trial court sustained the defendant's general demurrer to the plaintiff's petition and the plaintiff now excepts to such judgment adverse to it. No contention is made that the petition did not set forth a cause of action against the defendant if the plaintiff was the proper party plaintiff.
Smith, Swift, Currie, McGhee & Hancock, Tom Watson Brown, contra.
Ben J. Camp, A. Tate Conyers, for plaintiff in error.
Friday May 22 23:46 EDT

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