Ed Smith & Sons, Inc. v. Mathis
| Decision Date | 05 October 1961 |
| Docket Number | No. 21311,21311 |
| Parties | ED SMITH & SONS, INC. v. David T. MATHIS et al. |
| Court | Georgia Supreme Court |
Smith, Kilpatrick, Cody, Rogers & McClatchey, Ernest P. Rogers, Barry Phillips, Atlanta, for plaintiff in error.
Calhoun & Calhoun, Bryan, Carter, Ansley & Smith, Charles H. Hyatt, Atlanta, for defendant in error.
Syllabus Opinion by the Court.
David T. Mathis and others filed a suit for damages in the Superior Court of DeKalb County against Hewitt Contracting Company, Ed Smith and Sons, Inc., and James Hare. The defendant Ed Smith and Sons, Inc., demurred to their petition on general and special grounds. The trial judge overruled its demurrers and the Court of Appeals, with Chief Judge Felton dissenting, affirmed his ruling. Ed Smith and Sons, Inc. v. Mathis, 103 Ga.App. 661, 120 S.E.2d 646. The demurring defendant applied to this Court for the writ of certiorari and in its application therefor assigned error on the majority ruling of the Court of Appeals. The writ was granted. So far as need be stated, the petition alleges: The defendant Hewitt Contracting Company had a contract to construct a bridge on a perimeter road in the vicinity of the Northeast Expressway--a highway which had at that point been completed and opened to traffic by the State Highway Board. While the plaintiffs' wife and mother was riding in an automobile which was being driven north on the expressway, the defendant Hare negligently killed her when he drove a caterpillar tractor and an earth mover which was owned by the defendant Ed Smith and Sons, Inc., from a field adjacent to the expressway and struck the automobile in which she was riding. The petition also alleges that the machinery which Hare was operating at the time of the collision was being used for the purpose of constructing the bridge which the defendant Hewitt Contracting Company was under contract to erect. Paragraph 12 of the petition alleges that at all times mentioned therein 'the defendant Hare was an agent and servant of the defendant * * * Ed Smith and Sons, Inc. acting in the scope of his authority as an agent and driver of the huge and massive tractor and earth mover owned by and used in the prosecution of that defendant's business by the defendant Hare.' Paragraph 13 of the petition alleges that at all times mentioned therein 'the defendant Hewitt Contracting Company was the general contractor on construction of the perimeter road bridge in the vicinity of the aforesaid portion of the Northeast Expressway [where the collision occurred], and did at all times retain the right to direct and control the time and manner of executing the work thereon, and did at all times retain the right to and did direct and control the time and manner of the execution of the work performed and being performed by the defendants Ed Smith and Sons, Inc. and James Hare * * *, so as to create the relationship of master and servant as between Hewitt Contracting Company and the defendants Hare and Ed Smith and Sons, Inc.' And paragraph 15 of the petition alleges that at all times mentioned therein 'the defendant Hare, individually and as agent and servant of the two defendant corporations, and the two defendant corporations acting by and through their agent and servant the defendant Hare were negligent in the following particulars.' The petition then sets out in detail the acts of negligence committed by the defendant Hare which resulted in the collision which caused the death of the plaintiffs' wife and mother. The general demurrer which the defendant Ed Smith and Sons, Inc., interposed to the petition attacked the sufficiency of its allegations to state a cause of action against it for the relief sought thereby. Held:
1. This Court and the Court of Appeals have consistently and frequently held, that when the allegations of a petition are attacked by demurrer on the ground that they are insufficient to state a cause of action for the relief sought thereby, they will be construed most strongly against the pleader. For recent cases so holding, see Barber v. Wells, 213 Ga. 1, 96 S.E.2d 595, and Conklin v. Jones, 95 Ga.App. 677, 98 S.E.2d 638. In Chalverus v. Wilson Wanufacturing Co., 212 Ga. 612(1), 94 S.E.2d 736, 737, this Court held: 'Upon demurrer, pleadings are to be construed most strongly against the pleader, and in the light of their omissions as well as their averments; and if an inference unfavorable to the right of a party claiming a right under such pleadings may be fairly drawn from the facts stated therein, such inference will prevail in determining the rights of the parties.' 'Where pleadings do not make distinct and positive allegations, but are ambiguous or couched in alternative expressions, on demurrer they will be given that construction which is most unfavorable to the pleader.' Doyal v. Russell, 183 Ga. 518, 534, 189 S.E. 32, 41. And in Richards & Associates, Inc. v. Studstill, 212 Ga. 375, 93 S.E.2d 3, 4, this Court said that 'when a plaintiff's case is pleaded in the alternative, one version of which is good and the other not, his petition will, on demurrer thereto, be treated as pleading no more than the latter, because it must be construed most strongly against the pleader.' The same rule applies to a petition which contains contradictory allegations. Central of Georgia Ry. Co. v. Prior, 142 Ga. 536, 83 S.E. 117.
2. Construing the petition in the instant case most strongly against the pleader which we are required to do for purposes of the general demurrer interposed thereto by the defendant Ed...
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...writing, then construing the petition most strongly against the pleader, as must be done on general demurrer, Ed. Smith & Sons, Inc. v. Mathis, 217 Ga. 354, 355, 122 S.E.2d 97, the petition must be construed as alleging that the oral construction loan agreement was a provision or part of a ......
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Black v. Montgomery Trucking Co., Inc., 47823
...the case. For the guidelines on this issue see: Greenberg & Bond Co. v. Yarbrough, 26 Ga.App. 544, 106 S.E. 624; Ed Smith & Sons, Inc. v. Mathis, 217 Ga. 354(2), 122 S.E.2d 97; Adams v. Johnson, 88 Ga.App. 94, 76 S.E.2d 135; Ga. Elec. Co. v. Smith, 108 Ga.App. 851, 134 S.E.2d 840; Hotel Sto......
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U.S. Fidelity & Guaranty Co. v. Forrester
...Johnson, 88 Ga.App. 94, 76 S.E.2d 135. The common law rule is found in Brown v. Smith, 86 Ga. 274, 12 S.E. 411; Ed Smith & Sons, Inc. v. Mathis, 217 Ga. 354(2), 122 S.E.2d 97; Cooper v. Plott, 226 Ga. 647, 177 S.E.2d 82; Greenberg & Bond Co. v. Yarbrough, 26 Ga.App. 544, 106 S.E. 624; Reave......
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Mitchell v. Burden Bros., Inc., 46970
...cannot be held liable for the servant's negligence (see Brown v. Smith & Kelly, 86 Ga. 274, 12 S.E. 411; Ed Smith & Sons, Inc. v. Mathis, 217 Ga. 354, 356(2), 122 S.E.2d 97; Greenberg & Bond Co. v. Yarbrough, 26 Ga.App. 544, 106 S.E. 624; Postal Telegraph-Cable Co. v. Tucker, 33 Ga.App. 525......