Cent. B. B v. Denson

• Decision Date: 23 May 1889
• Citation: 83 Ga. 266,9 S.E. 788
• Parties: Central B. B. v. Denson.
• Court: Georgia Supreme Court

9 S.E. 788

(83 Ga. 266)

Central B. B.

v.Denson.

Supreme Court of Georgia.

May 23, 1889.

Pleading—Amendment.

1. A declaration alleged that plaintiff's intestate "was killed by the gross negligence of the agents of said company, [defendant,] and [the killing] could have been avoided by ordinary care and diligence on their part in running the cars of said company; that he was run over without any attempt to avoid it, thereby killing him, "—to plaintiff's injury, etc. Held that, while the declaration was very inar-tistically drawn, it contained enough to amend by, and a new cause of action was not set out by an amendment alleging that the intestate " was on the railroad track where persons were accustomed to walk; that he was between the blow-post and the crossing on said track; and that the agents of said company failed to give any signals or to blow its engine, as required by law; and that they, without any fault on his part, did by said negligence run over and kill him, " etc.

2. Defendant may except to the overruling of a demurrer to the declaration, interposed on the ground that no sufficient cause of action is alleged, and may bring the question to the supreme court for review before final judgment.

Error from city court of Macon; Harris, Judge.

Action for damages for wrongful killing of plaintiff's husband. Defendant brings error.

R. F. Lyon, for plaintiff in error. M. G. Bayne, for defendant in error.

Simmons, J. It appears from the record in this case that, when the case was called for trial in the court below, the defendant demurred to the plaintiff's declaration, on the ground that it contained no sufficient cause of action to warrant a recovery; whereupon the plaintiff amended her declaration, which the court allowed her to do, over objection of the defendant, —the defendant contending that there was not enough in the original declaration to amend by, and because the amendment thus made set out a new and independent cause of action from that set out in the original declaration. The defendant also demurred to the declaration as amended, and the demurrer was overruled. The plaintiff then introduced her evidence, and at the close thereof the defendant moved for a nonsuit, on the ground that the evidence was insufficient to authorize a verdict for the plaintiff. The record discloses that there was a mistrial in the case. The defendant then filed its bill of exceptions, assigning error in the rulings of the court (1) in not sustaining the demurrer to the plaintiff's declaration; (2) in allowing the plaintiff to amend her declaration; (8) in not sustaining the demurrer to the declaration as amended; and (4) in not granting the defendant's motion to nonsuit the plaintiff, after she had closed her evidence.

1. It appears from the record that when the defendant demurred to the declaration, and before the decision of the court thereon, the plaintiff amended her declaration by setting out more specifically the acts of alleged negligence on the part of the defendant...