Kellett v. Templeton

• Decision Date: 05 December 1939
• Docket Number: No. 27707.,27707.
• Citation: 6 S.E.2d 392
• Parties: KELLETT. v. TEMPLETON.
• Court: Georgia Court of Appeals

6 S.E.2d 392

KELLETT.

v.TEMPLETON.

No. 27707.

Court of Appeals of Georgia,

Division No. 1.

Dec. 5, 1939.

Syllabus by the Court.

The amended petition failing to distinctly set out or to allege any specific act of negligence, the action should have been dismissed on general demurrer.

Error from Municipal Court of Augusta; Joseph E. Bryson, Judge.

Personal injury action by I. S. Templeton against James Kellett. To review an adverse judgment, defendant brings error.

Judgment reversed.

Frederick B. Tyler, of Augusta, for plaintiff in error.

No appearance for defendant in error.

BROYLES, Chief Judge.

The plaintiff sued the defendant for damages for personal injuries, alleged to have been sustained by her when the defendant drove his automobile against her. The only allegations in the amended petition as to the defendant's negligence are as follows: Paragraph 2. Defendant "has damaged your petitioner in the sum of $500 by reason of the negligent operation of his automobile on April 2, 1938, in the City of Augusta, on Seventh Street, between Reynolds and Broad Streets;" Paragraph 3. "Petitioner avers that as she was crossing the street at said time in front of the Chronicle office and in broad daylight, the defendant negligently ran into petitioner * * *;" Paragraph 6. "Petitioner avers that she was in full view of defendant and if (italics ours) he were going at a moderate rate of speed, he could have stopped said car without striking her;" Paragraph 7. "Petitioner avers that she was in full view of the defendant and if [italics ours] he had been maintaining a proper lookout for pedestrians in said street, he could have avoided said collision." The defendant's demurrer alleged that the petition failed to set out a cause of action against him; and that it failed "to set out any violation of any duty that the defendant owed to the petitioner, and the allegations of negligence are too general in their terms to put the defendant on notice of what his negligence consisted or what duty to the petitioner he has violated." The court overruled the demurrer, and the defendant excepted to that judgment.

It is well-settled law that "A ruling upon the question of negligence can be invoked by general demurrer." Harden v. Georgia R. Co, 3 Ga.App. 344 (c), 59 S. E. 1122. And in Georgia R. & Banking Co. v. Williams, 3 Ga.App. 272(2), 59 S.E. 846, this court held: "The petition, failing to set out any specific acts of negligence which would authorize a recovery, should, on proper timely demurrer, have been dismissed." And on pages 273 and 274 of 3 Ga App, on page 847 of 59 S.E, the court said: "While it seems to be anomalous that a plaintiff can recover by showing the injury, if the presumption of negligence arising against the railroad company is not rebutted, without proving the specific allegations of negligence contained in his petition, still, specific acts of negligence upon which he expects to recover must be alleged * * * [and] the presumption of negligence * * * does not dispense with the proper pleading of necessary facts. And while a...