Abercrombie v. Ledbetter-Johnson Co., LEDBETTER-JOHNSON

• Citation: 116 Ga.App. 376,157 S.E.2d 493
• Decision Date: 05 September 1967
• Docket Number: No. 42963,No. 3,LEDBETTER-JOHNSON,42963,3
• Parties: Mac C. ABERCROMBIE v.COMPANY et al
• Court: United States Court of Appeals (Georgia)

Page 493

157 S.E.2d 493

116 Ga.App. 376

Mac C. ABERCROMBIE v. LEDBETTER-JOHNSON COMPANY et al.

No. 42963.

Court of Appeals of Georgia, Division No. 3.

Sept. 5, 1967.

Rehearing Denied Sept. 27, 1967.

Certiorari Denied Nov. 9, 1967.

Syllabus by the Court

As the petition strictly construed against the pleader fails to show any negligence on the part of the defendant contractors engaged in performing a public work as being the proximate cause of the silting of a lake and other damage to the plaintiff's property, the trial judge properly sustained the contractors' general demurrers to the petition.

This is an action in Floyd Superior Court by Mac C. Abercrombie, Jr., against Ledbetter-Johnson Company and Ledbetter Brothers, Incorporated, for damages on account of the silting of a lake, damage to a roadway, and decrease in property value allegedly caused from the construction by the defendants of a portion of Interstate 20 in Douglas County under a contract with the State Highway Department. The plaintiff appeals from orders of the trial court sustaining the general demurrer of each defendant.

Noland & Coney, John L. Coney, Douglasville, E. J. Clower, Rome, for appellant.

Neely, Freeman & Hawkins, Edgar Neely, Jr., Atlanta, Matthews, Maddox, Walton & Smith, Rome, for appellees.

JORDAN, Presiding Judge.

It is the settled law of this State that a contractor engaged in public work under contract with the State or one of its political subdivisions is not immune to liability for injuries caused by its negligence while performing the contract. State Construction Company v. Johnson, 82 Ga.App. 698, 62 S.E.2d 413; Davis v. Smiley, 33 Ga.App. 508, 126 S.E. 904. This is in accord with the weight of authority in other jurisdictions which do not excuse a contractor for injuries resulting from negligence or a wilful tort. See annotation, 9 A.L.R.3d 382.

There is no contention that a wilful tort is involved, and application of the foregoing rule eliminates sovereign immunity to support the general demurrers to the petition if the allegations of the petition are sufficient to show negligence by the defendants as the proximate cause of the alleged damage. In considering this proposition under the practice in effect when the trial judge dismissed the action, the petition on general demurrer must be strictly construed against the pleader, although general allegations of negligence other than mere unsupported conclusions of the pleader are good. See Code, § 81-304; James v. Smith, 92 Ga.App. 131, 137, 88 S.E.2d 179; McPhail v. Atlantic Coast Line Railroad Company, 93 Ga.App. 599(2), 92 S.E.2d 558. Under the rule of strict construction of the pleadings on demurrer contradictions are resolved to the detriment of the pleader, and unfavorable inferences fairly drawn from the pleadings must prevail. See Independent Life and Accident Insurance Company v. Pantone, 80 Ga.App. 426(1), 56 S.E.2d 153; Krueger v. MacDougald, 148 Ga. 429(1), 96 S.E. 867; McEntire v. Pangle, 197 Ga. 414(1), 29 S.E.2d 503.

The petition shows that in the course of construction of Interstate 20 in Douglas County, including changes in other roadways, the defendant moved large quantities of fill materials and constructed embankments, which had the effect of changing the drainage features of the terrain, and that the alleged damage to the plaintiff's property was caused by the change in the flow of surface waters and the washing of silt and debris. While the petitioner does not follow the usual practice of setting forth specific allegations of negligence as the proximate cause of the alleged losses he does refer to negligence in two paragraphs of the petition. In Paragraph 19 he alleges '(t)hat as a natural and direct result of the negligent manner in which the defendants constructed said embankments and changed the contour of the surrounding land,' the northern third of his lake was 'engulfed by silt, sand, clay, rock and other such material * * *,' and in Paragraph 23 he alleges '(t)hat the defendants negligently failed to take proper measures during the course of constructing said embankments to prevent the conditions herein complained of by seeding, sodding or such other method to prevent the loose fill material from falling and washing into the streams as herein alleged.' Preceding these allegations, in Paragraph 15, he alleges that...