Opinion
39054.
DECIDED SEPTEMBER 27, 1961.
Action for damages. Fulton Civil Court. Before Judge Henson.
Ben J. Camp, A. Tate Conyers, for plaintiff in error.
Smith, Swift, Currie, McGhee Hancock, Tom Watson Brown, contra.
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 S.E. 333)." Calbeck v. Herrington, 169 Ga. 869, 873 ( 152 S.E. 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 S.E. 455). See also Midland Properties Co. v. Farmer, 100 Ga. App. 8, 33 ( 110 S.E.2d 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 S.E.2d 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 S.E.2d 746), and citations.
3. Either the bailor or bailee, except in the case of gratuitous bailment may bring an action against a stranger to recover for damages to the bailed property and if the action is brought by the bailee he may recover the full damages and hold the balance, beyond his special interest, for the bailor. Schley v. Lyon, 6 Ga. 530; Marietta Ice Coal Co. v. Western A. R. Co., 24 Ga. App. 725 ( 102 S.E. 182); 8 C.J.S. 371, Bailments, § 56.
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.
Judgment reversed. Carlisle, P. J., and Eberhardt, J., concur.
DECIDED SEPTEMBER 27, 1961.
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.