dissenting. I concur with the majority opinion in its ruling in Division 1 of the opinion, and I concur with the ruling of the majority in Division 2, but only insofar as it holds that a counterclaim for malicious use of process or malicious abuse of process is premature in the present case. As to the remainder, I dissent. The basis of my disagreement with the majority is that they have misconstrued what is called by the parties a cross complaint. Insofar as this case is concerned, it is here immaterial what it is called, but we must determine what it is. Section 8(c) of the Georgia Civil Practice Act (Code Ann. § 81A-108) specifically provides: “When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court . . . shall treat the pleadings as if there had been a proper designation.” (Emphasis supplied.)
My position is that the counterclaim sets up proper matter for defense and a proper item for recovery in the event the defen*845dant wins the trover action, that is, the fair rental value of the vehicle. Let us examine the pleading in question with more particularity.
Plaintiff made a motion “to dismiss the cross complaint because said cross complaint fails to state a claim against this plaintiff” for which relief can be granted and also on the ground that the cross complaint fails to set forth any defense in law or in equity to plaintiff’s complaint.” The cross complaint in paragraph 1, adopted paragraphs 1 and 2 of the answer, which shows that no payments are past due on the conditional-sale contract, and that there was nothing wrong with the defendant’s credit. Paragraph 2 of the cross complaint alleges that the defendant executed all documents requested by the plaintiff and delivered to the plaintiff the Chrysler trade-in and brought the purchased vehicle home with him and that at that time the plaintiff was to have delivered the automobile tag and title to him which he had not yet received. Paragraph 3 alleges that the defendant’s agent subsequently demanded $535 additional money and that when the defendant’s wife went down to pick up the tag, the plaintiff tried at that time to take the purchased vehicle and subsequently went to defendant’s house and attempted to take the purchased vehicle from the defendant’s wife. Paragraph 4 alleges “this defendant shows that as a result of plaintiff’s wrongfully depriving him of the use of his vehicle through the within action that he is entitled to rental on said vehicle for the time that it is not in his use and he feels that $15.00 per day is fair rental for the vehicle is a proper amount commencing on the 28rd day of August, 1968, and continuing until such time as the within matter is finally determined.” Paragraph 5 alleges that the plaintiff has not acted in good faith and wilfully and maliciously swore out the bail trover process for the purpose of depriving defendant of the use of his property and the “defendant is thus entitled to punitive damages from plaintiff as provided by law. Defendant sets these damages at $10,000 to him plus $25,000 to deter the repetition of the wrong.” The prayers were as follows: “A. That the prayers of plaintiff be denied in their entirety; B. That he be granted judgment of this court against plaintiff in the sum of $15.00 per day commencing on the *84623rd day of August, 1968, and continuing such time as his vehicle is returned to him; C. That he be granted damages against plaintiff in the sum of $35,000 as by law provided.” . The motion to dismiss the cross complaint attacked it as a whole, but made no attack on any of its separate parts. No motion to strike the particular insufficient claim of malicious use or malicious abuse of process was made under the provisions of Section 12(f) of the Civil Practice Act (Code Ann. § 81A-112(f)). I concede that the cross complaint fails to set forth a claim for the punitive damages alleged in paragraph 5 and prayed for in paragraph C. of the prayers, however, the cross complaint in paragraphs 1, 2, 3, and 4 and in paragraph B of the prayers sufficiently set up a defense and a claim for hire of the repossessed automobile, and, if defendant prevails in the trover action, he would be entitled to recover the property and its hire in this action under the election granted him in Code § 107-209, which reads as follows: “When the plaintiff in a trover suit has replevied the property and, on the trial of the case, fails to recover or dismisses his petition, the defendant, instead of suing on the replevy bond, may recover the property and its hire, or the sworn value placed upon the property in the petition.” See also McLaurin v. Henry, 90 Ga. App. 864 (84 SE2d 713); Wilson v. Swords, 22 Ga. App. 233 (95 SE 1013); Underwood Typewriter Co. v. Veal, 12 Ga. App. 11 (76 SE 645). Accordingly, since the cross complaint in part is sufficient to withstand the motion to dismiss, the trial court did not err in overruling the motion. Medlock v. Wood, 4 Ga. App. 368 (2) (61 SE 516); Tuxworth v. Barber, 21 Ga. App. 748 (1) (94 SE 1042); Jones v. Lawman, 56 Ga. App. 764 (194 SE 416); Dawson Production Credit Assn. v. Connelly, 61 Ga. App. 889 (1) (8 SE2d 424).
Even should we concede that the claim for hire was joined to the claim for malicious use or malicious abuse of process, the claim for hire is not waived thereby, but can still be asserted and maintained as a proper part of the pleading. Neither was there a motion to strike that portion of the cross complaint seeking to recover hire on the grounds that such pleading and prayer was unnecessary. See Section 12(f) of the Civil Practice Act {Code Ann. § 81A-112 (f)); Moore’s Federal Practice, Yol. 2A, *847p. 2419 et seq., paragraph 12.21. “No defense ... is waived by being joined with one or more other defenses . . . in a responsive pleading . . .” Section 12(b) of the Civil Practice Act (Code Ann. § 81A-112(b)).
That, in order to recover hire upon prevailing in the case, it is not necessary that the defendant file pleadings does not authorize the striking of such pleading on the ground that it fails to set forth a defense or that it fails to set forth a cross complaint. If the appellant desired to attack some portion of the pleading for insufficiency, he should have made a motion to strike that portion as provided under 12 (f) of the Civil Practice Act (Code Ann. § 81A-112(f)). Since there is a prayer for the hire seperate from the prayer for punitive damages based on the malicious use or malicious abuse of process, it cannot be said that the claim for hire is included in the damages sought for the malicious use or malicious abuse of process, and should the defendant have failed either by pleading his claim for hire, or by failing to make the election for hire provided in Code § 107-209 above, he could not recover for hire in an independent action subsequently brought. The majority opinion in this area makes the ruling that “[i]f he should recover or attempt to recover for it [the hire] there he could not, of course, because of res judicata, include it in a subsequent action.” That is exactly what the defendant here did, he attempted to recover for hire, so it follows that under the ruling by the majority “because of res judicata” he cannot “include it in a subsequent action,” and in the same breath, they say that the dismissal of his claim for hire by the majority does not preclude him from hire in the present action. How can they dismiss his claim for hire and, at the same time, say he is entitled to recover it because it is not necessary to file pleadings to do so? This may be a convenient arrangement as the law of the case so as to cure any harm done to the defendant by the majority’s action in this ease, it does not cure the errors in the law of construction of pleadings indirectly laid down by the majority in its construction of the pleadings. The majority ruling in effect ignores the modern concept of construing pleadings more favorably to the pleader; instead they have applied the rule of strict construction and have construed *848the present pleadings more strongly against the pleader. To say that a defense and a claim for hire by a defendant in a trover action where the plaintiff has repossessed the property by giving bond therefor is premature, merely because he pleaded it (when no pleading is actually required), is unsupported by any authority, and does not comport with the rules of procedure and practice clearly set forth in the Georgia Civil Practice Act. I cannot agree to such a conclusion.
I am authorized to state that Judges Deen and Evans concur in this dissent.