Douglas, A. & G.R. Co. v. Swindle

• Decision Date: 09 December 1907
• Docket Number: 260.
• Citation: 59 S.E. 600,2 Ga.App. 550
• Parties: DOUGLAS, A. & G. R. CO. v. SWINDLE.
• Court: Georgia Court of Appeals

59 S.E. 600

2 Ga.App. 550

DOUGLAS, A. & G. R. CO. v. SWINDLE.

No. 260.

Court of Appeals of Georgia

December 9, 1907

Syllabus by the Court.

The test of the sufficiency of a petition to resist a general demurrer is the ability of the defendant to admit all that is alleged therein and yet escape liability altogether. A general demurrer to the petition should not be sustained and the suit dismissed because the plaintiff would not be entitled to recover all he asks, if the petition sets up a good cause of action as to any portion of his demand. Judged by this rule, there was no error in overruling the demurrer to the petition as a whole.

[Ed Note.-For cases in point, see Cent. Dig. vol. 39, Pleading, § 105.]

The special demurrers were properly overruled.

[Ed Note.-For cases in point, see Cent. Dig. vol. 39, Pleading §§ 486-490.]

A demurrer addressed to a particular paragraph of the pleadings is not necessarily, for that reason, a special demurrer. "A general demurrer enables the party to assail substantial imperfections in the pleadings of the opposite side, without particularizing any of them in his demurrer. A special demurrer goes to the structure merely, and not to the substance, and obliges the party demurring to lay his finger on the very point." Martin v. Bartow Iron Works, 35 Ga. 323, Fed. Cas. No. 9,157.

[Ed Note.-For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 491, 512.]

"Demurrer, being a critic, must itself be free from imperfections."

Error from City Court of Nashville; H. B. Peeples, Judge.

Action by W. L. Swindle against the Douglas, Augusta & Gulf Railroad Company. Judgment for plaintiff. Defendant brings error. Affirmed.

Wm. H. Barrett and J. W. Quincey, for plaintiff in error.

Hendricks, Smith & Christian, for defendant in error.

RUSSELL J.

This is a suit to recover damages for personal injuries alleged to have been sustained by the plaintiff as a passenger on a train of defendant. Within the time required by law the defendant company demurred to the petition. The court overruled the demurrers, and the defendant company excepted. The question to be determined, therefore, in our search for error is whether the court erred in overruling any of the demurrers or whether it erred in overruling them all. There can be no possible doubt as to the ruling as to the first demurrer, which is denominated a general demurrer, and none as to the second, third, fourth, and fifth; and the seventh was cured by proper amendment. Upon our first reading of the twelfth paragraph of the petition and of the demurrer thereto, numbered "sixth," we were inclined to think that the court erred in not sustaining that demurrer; but, upon more mature reflection, we are satisfied that the trial judge committed no error in likewise refusing to strike the twelfth paragraph. This paragraph is open to a special demurrer; and, if a proper special demurrer thereto had been offered, it should have been sustained, but the demurrer insisted upon was a general demurrer. To have sustained it would have been to strike the entire paragraph, the major portion of which is properly alleged, and is pertinent and germane to the cause of action.

The petition, in the first, second, third, and fourth paragraphs, after alleging that the defendant company is a corporation having an office and agent in Berrien county, sets up that the petitioner was a passenger with a ticket, which had been surrendered to the conductor, entitling him to be carried from Sparks to Nashville, Ga. The train stopped at Massee, Ga., and, the weather being cool and it being unpleasant away from the fire, the plaintiff went to the stove for the purpose of warming, it being necessary for him to get near the stove to warm. He was standing with his face towards the west, when the employés of the defendant company running the train went on the side track to get certain cars loaded with lumber to "make up" their train, and said employés carelessly "kicked" the loaded cars off the side track onto the main line, and allowed them to run wild down said main line at a rapid rate of speed without any one upon them to control them, and they collided with such force with the cars and a flat car in front of the passenger coach aboard which was the plaintiff that he was knocked off his feet, thrown backwards across the top of the stove in which was a fire and by which he was warming, and injured and damaged as thereinafter set forth, in the sum of $10,000. The remainder of the petition is as follows: "Sixth. That the cars of the defendant company were allowed to run wild or shoved in by the engine in such a rapid rate of speed until it bucked or doubled the flat car between the passenger coach and the two box cars attached to the flat between said box car and said passenger coach. Seventh. Defendant was further negligent in that, when they 'kicked' said cars in and upon said main track or shoved them in and upon said line with their engine as aforesaid, they rang no bell, nor blew any whistle, nor gave any alarm by which the plaintiff could be on his guard, thereby throwing him backwards upon said stove in the manner and form aforesaid. Eighth. The plaintiff was injured and damaged as follows: That by reason of said sudden and violent collision of the cars, caused by the carelessness of the defendant company and the throwing of the plaintiff against and upon the stove as aforesaid, the lumbar region of his body striking the top of said stove, breaking two of his lower ribs on the left side of his spinal column, and breaking or fracturing the third rib and scalding and burning the lumbar region of his body, he is injured and damaged in the sum aforesaid. Ninth. The plaintiff, by reason of the aforesaid injuring, was unconscious for several minutes, and that he was unable to stand, walk, or navigate without assistance, and that his spinal column is severally and permanently injured. Tenth. That, by reason of the aforesaid injuries, that the spinal column of the plaintiff, at and near the lumbar region of his body, by reason of the concussion caused by the injuries aforesaid, has caused his spinal column to become the seat of the inflammation and pressure, thereby causing his spinal column, as aforesaid, quick and tender and easily hurt, your petitioner therefore suffering the most excruciating pains, which are permanent and lasting. Eleventh. That, by reason of the injuries aforesaid, the concussions of the spinal column at the lumbar region have caused the plaintiff to lose almost entirely the use of his left leg, and that he can walk only by a violent effort in limping and dragging his leg as aforesaid. Twelfth. The plaintiff alleges that less than two years prior to his injuries as aforesaid he was severely and almost fatally injured by the defendant's road in the city of Nashville, Ga., and that by reason of his last injury the old wounds and injuries have been causing him great annoyance, pain, and suffering. Thirteenth. That each of the hips of the plaintiff has unceasing and severe pains in them, caused by the injuries inflicted upon him as aforesaid, the seat of said injuries being in the lumbar region of the spinal column of petitioner, as aforesaid described, and all of which injuries are permanent and lasting, and causes your petitioner the most severe mental pain and suffering. Fourteenth. Your petitioner further shows that he was entirely without fault in the transaction, and that his injuries were caused by the wrong and negligence of the said defendant, its agents, and servants, as aforesaid, nor could he, by the exercise of ordinary care upon his part, have prevented the consequence to himself of the defendant's negligence. Fifteenth. That petitioner at the time he sustained his injuries as aforesaid was earning from $75 to $100 per month; that he was 50 years of age, and had a reasonable expectancy of _____ years of life."

The defendant company filed the following demurrer, and the action of the court thereon is the error complained of "(1) That there is no cause of action set out in the said petition. And said defendant demurs specially: (2) Because it is not made sufficiently plain in paragraph sixth or elsewhere what is meant by the allegation that it 'bucked' or doubled the flat car between passenger coach and the two box cars. (3)...