Opinion
38949, 38979.
DECIDED SEPTEMBER 5, 1961. REHEARING DENIED SEPTEMBER 21, 1961.
Damages. Fulton Civil Court. Before Judge Parker.
William A. Thomas, for plaintiff in error.
Carpenter, Karp Matthews, A. Tate Conyers, contra.
1. The plaintiff's petition set forth a cause of action, and the trial court did not err in overruling the defendant's general demurrer.
2. While the petition alleged circumstances authorizing a recovery of punitive damages the evidence did not support such allegations, and the judgment granting the defendants a new trial because such recovery was authorized by the charge to the jury was not error.
3. A verdict for the plaintiff was authorized by the evidence.
4. Where a case must be retried a complaint that the original verdict was so excessive as to show bias and prejudice will not be considered.
DECIDED SEPTEMBER 5, 1961 — REHEARING DENIED SEPTEMBER 21, 1961.
Mrs. Ime Oliver brought the present action to recover the value of certain silver allegedly delivered to the defendants and not returned to her on demand, as well as the expenses of litigation, attorney's fees and punitive damages. The defendants demurred to the petition as originally filed and after various amendments and rulings on demurrers the case came on to be heard and a verdict for plaintiff was returned which found for the plaintiff in the amount sued for as the value of the silver plus a stated amount of punitive damages. The defendants filed a motion for new trial on the usual general grounds which was amended to add two special grounds. The defendants also filed a motion for a judgment non obstante veredicto. The trial court granted a new trial on one of the special grounds after the plaintiff refused to write off the punitive damages. The plaintiff assigns error on the judgment granting the new trial while in the cross-bill of exceptions the defendants assign error on the judgments overruling two grounds of demurrer, overruling the motion for judgment non obstante veredicto and overruling the remaining grounds of the motion for new trial.
1. The plaintiff's petition as amended alleged a gratuitous bailment, a demand upon the bailee, and that the bailee had sold the plaintiff's property and converted the proceeds to its own use. Under the decisions of the Supreme Court in Merchants Nat. Bank of Savannah v. Carhart, 95 Ga. 394 ( 22 S.E. 628, 32 LRA 775, 51 ASR 95); Merchants Nat. Bank of Savannah v. Guilmartin, 88 Ga. 797 ( 15 S.E. 831, 17 LRA 322); and the decisions of this court in Caldwell v. Alma Gin c. Co., 27 Ga. App. 128 ( 107 S.E. 566), and similar cases, the judgment of the trial court overruling the defendants' general demurrer was not error.
2. The plaintiff's petition alleged that the defendants sold the plaintiff's property and converted the proceeds of said sale to their own use thereby making a case wherein the plaintiff, if the jury so found, could be entitled to punitive damages and the judgment overruling the defendants' demurrer to the allegation seeking punitive damages was not error. However, on the trial of the case the evidence did not show any sale of the plaintiff's property by the defendants nor did it show that the defendants had wilfully converted the property to their own use. Accordingly, the charge authorizing punitive damages, based on the alleged aggravation, which allegations were not supported by the evidence, was error, and the trial court's judgment granting a new trial on such ground was not error. See Southern Ry. Co. v. O'Bryan, 119 Ga. 147 ( 45 S.E. 1000), and citations.
3. In support of the usual general grounds of the motion for new trial, as well as in support of the motion non obstante veredicto, the defendants contend that the evidence, if the action is one for trover, demands a verdict for them. The trial court, in ruling on the defendants' demurrers, held that the petition was based on a gratuitous bailment, and such judgment stands unreversed. Accordingly, the question presented by the usual general grounds of the motion for new trial, is whether the evidence authorized the finding that the defendants failed to exercise even slight care for the plaintiff's property since the evidence was uncontradicted that the property was delivered to the defendants by the plaintiff.
The defendants contend that the evidence demanded a finding that the property was shipped to the manufacturer through the United States mail and that therefore a finding that it was not grossly negligent was demanded.
In Carmichael Tile Co. v. McClelland, 213 Ga. 656 (4) ( 100 S.E.2d 902), Justice Candler, speaking for the Supreme Court, said: "Where a letter is properly addressed, duly stamped, and deposited in the mail, there is a presumption that it was received. National Building Assn. v. Quin, 120 Ga. 358 (3) ( 47 S.E. 962); Bankers Mutual Casualty Co. v. Peoples Bank of Talbotton, 127 Ga. 326 (2) ( 56 S.E. 429)."
On the trial of the case, H. B. Wright, one of the defendants, and an agent and employee of the jewelry store testified that the plaintiff's property was mailed to the manufacturer. However, when he was examined with reference to the details of such mailing he testified that the property was given to a porter to mail, that he had at the time of the mailing a receipt which showed such mailing but did not have it at the time of the trial. The defendants also introduced in evidence an "authorization for return of goods" from the manufacturer with instructions to ship the property to New Bedford, Massachusetts, as well as a reply from the Post Office Department dated some sixteen months after the property was delivered to the defendants showing that the manufacturer had no record of receiving the merchandise in its New York office.
The defendants' evidence did not demand a finding that the parcel was mailed so as to raise the presumption that it was received by the manufacturer, for there was no evidence that it was properly addressed, duly stamped and placed in the mail. The defendants did not produce as a witness the porter who supposedly mailed the parcel for the defendants, nor was his whereabouts accounted for. The absence of this witness, like the absence of the receipt for the mailing would authorize the jury, under Code § 38-119, to presume from the absence of such evidence that the porter would have testified to the contrary and that no mailing receipt existed. Code § 38-119 applies equally to documentary evidence. See Davis v. Alston, 61 Ga. 225, where an argument by counsel as to the suspicions raised by the failure to produce a receipt was held to be proper. See also Southern Ry. Co. v. Acree, 9 Ga. App. 104 ( 70 S.E. 352).
In as much as the jury was authorized to believe that the mailing did not take place, or if it took place it was mailed to New York when the manufacturer had authorized it to be shipped to New Bedford, Massachusetts (See New Amsterdam Cas. Co. v. Russell, 102 Ga. App. 597, 117 S.E.2d 239), the finding of the jury that the defendants, after delivery was shown without contradiction, did not carry the burden of showing no gross negligence in caring for the plaintiff's property was authorized. Therefore, the judgments of the trial court overruling the defendants' motions for new trial and for a judgment non obstante veredicto were not error.
4. The remaining special ground, which contends that the verdict as to punitive damages was so excessive as to show bias and prejudice will not be considered in as much as this will probably not recur on another trial. See A. C. L. R. Co. v. Studdard, 99 Ga. App. 609, 614 ( 109 S.E.2d 523).
Judgments affirmed. Carlisle, P. J., and Eberhardt, J., concur.