(After stating the foregoing facts.)
1. It is evident from the allegations of the petition that the pleader contemplated bringing his action under the Civil Code, §§ 2774, 2775. These provisions are taken from the act approved August 22, 1907 (Acts 1907, p. 84). It is there declared to be the ' duty of the railroad companies of this State to furnish growers of peaches, apples, cantaloupes, watermelons, or -other perishable products, icing and refrigerator cars, or other suitable cars for transportation of such products, whenever ■ application is made therefor in writing by the shipper twenty-four hours in advance of the time such cars are wanted for loading. Eor failure to comply with such duty it is also declared that the railroad companies shall be liable for damages based upon the market value of the product to be shipped, and an additional sum of $50 for each car, as liquidated damages, for failure to pay within a specified time after notice of claim for damages. Live stock is not included among any of the things named in the statute, and clearly it is not applicable to a refusal to furnish cars for shipment of live stock. Treated as an action for breach of duty specified in the code sections above mentioned, the plaintiff failed to set out a cause of action. But the mere fact that the pleader may have referred to those sections, and have undertaken to hold the company liable under them, would not be cause to dismiss the plaintiff’s action, if the petition alleged facts which, *785under the statutes or common law, would suffice as a basis for an action. In such cases the proper law will be applied to the-substance of the allegations, and those allegations which relate only to the inapplicable statutes will be treated as surplusage. Gainesville Midland Railway v. Vandiver, 141 Ga. 350 (80 S. E. 997). If the petition be stripped of all the allegations relative to liability under the statutes first above mentioned, and those relating to a statutory penalty, on the basis that such allegations were mere surplusage, there would be enough left to charge that on a given day, after notice of his intention so to do, the plaintiff tendered the railroad common carrier, for transportation from Uvalda to Augusta, designated live stock, and had it been received and properly transported it would have reached its destination at a specified time, when and where it would have been of a stated market value; and that, on being tendered, the defendant refused to receive and transport the live stock until several days had elapsed, at which time they were received and duly transported; but that in the meantime there was expense attending the keeping of the live stock at the place where tendered, and depreciation in market value at the place of destination, on account of which plaintiff sustained damages in separate amounts. Where live stock is properly tendered for transportation to a railroad engaged as a common carrier, it is bound, under the common law as enlarged by statute, to receive and transport it with due diligence, and a breach of such duty will render the carrier liable for all proximate damages flowing from the breach of such duty. Civil Code, §§ 2767, 2769. See also Southern Railway Co. v. Moore, 133 Ga. 806 (67 S. E. 85, 26 L. R. A. (N. S.) 851). The substance of the petition being as indicated above, it set forth, a cause of action for.damages proximately flowing from a breach of duty to receive and transport live stock with proper dispatch. Some of the grounds of special demurrer are to be considered as relating only to the insufficiency of the petition, treating the case as one instituted under the Civil Code, §§ 2774-2775, all of which, as we have seen above, could be regarded as mere surplusage, but none of them moved to strike any part of the petition on the ground of surplusage. Among the grounds of special demurrer which might have been intended to apply to the petition, irrespective of the action having been brought under the code sections last mentioned, is one which complains that the petition did not allege that plaintiff *786was owner of the live stock. Whether allegations of this character would be necessary in a case of entire refusal by the carrier to receive and transport the live stock on the ground that they were tendered for shipment by one other than the owner, or one not legally representing the owner, is a question not presented by this record. The case we are dealing with is one where the carrier did receive and transport the live stock for the plaintiff, thereby recognizing him as a proper consignor. While damages sought to .be recovered are alleged to have resulted from the delay of the defendant in receiving and transporting the live stock, it was not necessary, under the circumstances, to allege more specifically the ownership of the property. The petition was not subject to general demurrer, or to any of the grounds of special demurrer urged against it.
2. The second count, which the proposed amendment contained, properly construed, also sounded in tort, and in substance was a restatement of the cause of action set forth in the original petition, with certain modifications intended to meet the grounds of demurrer urged against the petition in the first instance. Upon the reasoning set forth in the first division, relative to the first count, the second count stated a cause of action, and it was erroneous to disallow the amendment.
3. ' The judge committed error in disallowing the amendment, and in dismissing the petition on demurrer.
Judgment reversed.
All the Justices concur, except Fish, G. J., absent.