Lee St. Auto Sales, Inc. v. Warren, 38410

• Decision Date: 08 September 1960
• Docket Number: No. 38410,No. 1,38410,1
• Citation: 116 S.E.2d 243,102 Ga.App. 345
• Parties: LEE STREET AUTO SALES, INC. v. A. R. WARREN
• Court: Georgia Court of Appeals

Page 243

116 S.E.2d 243

102 Ga.App. 345

LEE STREET AUTO SALES, INC. v. A. R. WARREN.

No. 38410.

Court of Appeals of Georgia, Division No. 1.

Sept. 8, 1960.

Syllabus by the Court.

1. The petition embraces all of the elements necessary to the maintenance of a cause of action based on negligence. These elements, four in number, are: (1) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributalbe causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff's legally protected interest as a result of the alleged breach of the legal duty.

2. Numerous special demurrers, including 16 additional ones filed after the petition was amended in its entirety, are disposed of in the opinion.

Amos Richard Warren brought this action in tort for personal injuries sustained through the negligence of the defendant. Briefly, the allegations were that while the plaintiff, a customer, was viewing used automobiles at the defendant's place of business, he was struck by a car which had been parked on the used car lot. The car rolled backwards suddenly down an incline, and pinned the plaintiff's leg between the rear bumper of the rampant automobile and the front bumper of an Oldsmobile which the plaintiff was engaged in examining.

The defendant filed general and special demurrers to the original petition. The trial judge overruled the general demurrers together with some special demurrers, and sustained certain other special demurrers with leave to amend.

The plaintiff then amended his petition. To the petition as amended the defendant renewed its original general and special demurrers, and by renewed demurrer number 2 demurred generally to the petition on the ground that it failed to set out a cause of action. Special demurrers 3 through 19 very generally charge vagueness and indefiniteness in various paragraphs of the petition, for the reason that they did not point out the exact location of the 1954 Oldsmobile at which the plaintiff was looking, or where, how, or in what manner the 1953 Dodge was parked, started to roll, how far it rolled, etc., and so on. These special demurrers further raised the question as to which of the defendant's agents, employees or servants had the duty to exercise the care or duty which the plaintiff charged them with the failure to exercise. In brief, these are the sum and substance of the 17 special demurrers.

The trial judge overruled all of the renewed and additional demurrers, with the exception of special demurrer number 8, which struck some surplus wording from the petition. The defendant filed exceptions to the order overruling the general and special demurrers, and it is on these exceptions that the matter is now before this court.

Smith, Swift, Currie, McGhee & Hancock, James B. Hiers, Jr., Atlanta, for plaintiff in error.

Candler, Cox, McClain & Andrews, Edward Andrews, John M. Bowling, Atlanta, for defendant in error.

BELL, Judge.

1. The plaintiff in error charges that the petition as amended does not set forth a cause of action against the defendant below.

We do not agree with this contention.

The petition embraces all of the elements necessary to the maintenance of a cause of action based upon negligence. These elements, four in number, are: (a) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff's legally protected interest as a result of the alleged breach of the legal duty. Cf. Prosser on Torts, 2d Ed. § 35.

Based on the allegations of the petition, the facts, if proven, would warrant a jury's determination of liability for the resulting injury. While some of the allegations of negligence might have been properly attacked by a special demurrer, they were not, and there are alleged acts of negligence which are sufficient to enable the petition to set forth a cause of action. The trial judge did not err in overruling the general demurrer.

2. We consider now the additional special demurrers filed after the petition was amended in its entirety.

Special demurrer number 3 charges that the plaintiff should have set forth in his petition the exact location in the lot of the automobile at which the plaintiff was looking when he was struck by another automobile in the defendant's lot. Special demurrer number 4 asks for considerable details as to where the automobile which rolled and struck the plaintiff was parked, how long it had been on the lot, who owned it, etc., and so on. Special demurrer number 5 asks for further information about the automobile which rolled. Special demurrers numbered 9, 10, 11, 12, 13, 14, 15, 16, 17, and 18 charged vagueness and indefiniteness in failing to specify which of the defendant's servants, agents, or employees should have exercised various acts alleged necessary to constitute the ordinary care with which the defendant is charged as...