Blackwell v. Southland Butane Gas Co.

• Decision Date: 02 July 1956
• Docket Number: No. 2,No. 36248,36248,2
• Citation: Blackwell v. Southland Butane Gas Co., 93 S.E.2d 833, 94 Ga.App. 128 (Ga. App. 1956)
• Parties: F. H. BLACKWELL v. SOUTHLAND BUTANE GAS COMPANY
• Court: Georgia Court of Appeals

Page 833

93 S.E.2d 833

94 Ga.App. 128

F. H. BLACKWELL v. SOUTHLAND BUTANE GAS COMPANY.

No. 36248.

Court of Appeals of Georgia, Division No. 2.

July 2, 1956.

Syllabus by the Court.

The court erred in sustaining the gernal demurrer and dismissing the original petition. The court also erred in sustaining the demurrers to count 3 of the petition. The court did not err in sustaining the demurrers to count 4 of the petition.

Floyd H. Blackwell, brought an action for the death of his son who was killed by a truck of the Southland Butane Gas Company. The deceased was lying on a public road when the driver of the truck hit and killed him. The petition was demurred to and amended several times. Finally the case came on for trial and resulted in a verdict and judgment for the plaintiff. That judgment and verdict was excepted to and the Court of Appeals in Southland Butane Gas Co. v. Blackwell, 91 Ga.App. 277, 85 S.E.2d 542, affirmed the judgment of the trial court. The case then went by certiorari to the Supreme Court, Southland Butane Gas Co. v. Blackwell, 211 Ga. 665, 88 S.E.2d 6, where the decision of the Court of Appeals was reversed, thus reversing the judgment of the superior court. The case then went back to the superior court for a new trial. Before the case was tried the plaintiff filed two amendments known as counts 3 and 4. The case stood on the original petition alleging simple negligence and these two added counts. The substance of count 3 alleges that the defendant wilfully and wantonly killed the deceased.

Count 4 alleges that the defendant was negligent in that, after he saw or should have seen the defendant in the road 100 feet ahead he failed to drive so as to avoid hitting him and failed to stop before striking him; that he was negligent in failing to anticipate his presence on the highway, and that the defendant's driver 'knew or in the exercise of ordinary care should have known of the perilous situation of the said Loyal Blackwell, and realized, or in the exercise of ordinary care should have realized or had reason to realize his helpless condition.'

The defendant demurred to the petition as amended generally and specially. The trial court sustained the demurrer, and this judgment is assigned as error.

Gordon M. Combs, Marietta, for plaintiff in error.

J. G. Roberts, Marietta, Dunaway & Embry, Atlanta, for defendant in error.

GARDNER, Predising Judge.

It is contended by the defendant that the petition was duplicitous. The petition, as amended, is not duplicitous. The petition, as amended, did not set out a new cause of faction. In Foster v. Southern Ry. Co., 42 Ga.App. 830, 157 S.E. 371, 372, this court said: 'A complaint for damages for homicide, which charges simple negligence...