Schroer v. Cole

Jenkins, P. J.

While, as a general rule, allegations of fact are to be construed most strongly against the pleader, yet, in the absence of special demurrer, where the facts alleged in a petition are such as would be proper and adequate to support one form of action, but inadequate, although appropriate, to another form of action, and where the petition is ambiguous to the extent that the pleader’s intention is not clearly manifest as to which form of action is relied upon, the courts in such a case, in endeavoring to ascertain the plaintiff’s intention, will prima facie presume that his purpose was to serve his best interest, and will construe the pleadings so as to uphold and not to defeat the action. Stoddard v. Campbell, 27 Ga. App. 363 (3) ( 108 S. E. 311 ). Construing the present petition as a suit for damages on account of injuries to a car entrusted to the defendant under a contract of bailment, the measure of damages was the difference between the value of the property before and the value after the injury. Mitchell v. Mullin, 45 Ga. App. 282 (5) ( 164 S. E. 276 ). Talcing the evidence as to the injury and as to the contention of excessive speed at which the defendant was driving across the street intersection where the collision occurred, according to some of the testimony, and the defendant’s voluntary promise to pay an amount more than the recovery, which concededly was not an offer of compromise, and which could be construed as an admission both with respect to liability on account of negligence and as to the amount of the damage, the finding and judgment for the plaintiff by the judge of the municipal court was authorized, and the appellate division of that court did not err in affirming the judgment.

Judgment affirmed.

Stephens and Sutton, JJ., concur.

Ralph R. QujMicm, Dillon, Calhoun & Dillon, for plaintiff in error. Hoke O’Kelley, contra.