Louisville & N. R. Co. v. Young, s. 41448

• Decision Date: 05 November 1965
• Docket Number: Nos. 41448,No. 3,41471,s. 41448,3
• Citation: 145 S.E.2d 700,112 Ga.App. 608
• Parties: LOUISVILLE & NASHVILLE RAILROAD COMPANY et al. v. Vernon P. YOUNG. Vernon P. YOUNG v. LOUISVILLE & NASHVILLE RAILROAD COMPANY et al
• Court: Georgia Court of Appeals

Page 700

145 S.E.2d 700

112 Ga.App. 608

LOUISVILLE & NASHVILLE RAILROAD COMPANY et al. v Vernon P. YOUNG Vernon P. YOUNG v. LOUISVILLE & NASHVILLE RAILROAD COMPANY et al.

Nos. 41448, 41471.

Court of Appeals of Georgia, Division No. 3.

Nov. 5, 1965.

Syllabus by the Court

Count 2 of the petition failed to state a cause of action for punitive or exemplary damages, in that it did not allege any acts of wilful and wanton misconduct amounting to a conscious indifference to the consequences on the part of the defendants, and the general demurrer thereto should have been sustained. The evidence of misconduct on the part of the defendants' agents and servants introduced without objection, though sufficient to authorize a finding of negligence proximately causing the plaintiff's injuries, was not sufficient to authorize a charge submitting to the jury the issue of whether the plaintiff was entitled to recover punitive damages on account of wilful and wanton misconduct. Therefore, the verdict awarding punitive damages was not authorized by the evidence, bu since no other errors of law appear, the error in overruling the general demurrer to count 2 and in charging the jury will not require a reversal of the case, but may be cured by the plaintiff writing off the amount awarded by the jury as punitive damages.

Vernon Pierce Young sued Louisville & Nashville Railroad Company and Atlantic Coast Line Railroad Company to recover damages on account of the destruction of his Ford truck and to recover the value of certain other personal property damaged when the truck was struck by a train operated by the defendants on a public crossing in Grovetown, Columbia County, Georgia. According to the allegations of the petition the defendants' line of track lies in an approximate not authorized by the evidence, but since The plaintiff alleged that he was engaged in moving a house trailer with his truck and drove the truck on to the crossing in question; that because of the defective construction and maintenance of the crossing, the truck choked down and became stalled thereon; that as plaintiff was about to restart the truck the defendants' freight train, consisting of three diesel units and at least 75 cars, approached Grovetown from the west proceeding at a speed of approximately 50 miles per hour, and rounded a curve approximately 200 yards before reaching the crossing on which plaintiff's truck was stalled; that because of its speed the engineer was unable to stop the train, though he applied the brakes at a distance of approximately 150 yards before reaching the crossing, and that the engine struck plaintiff's truck, demolishing it and rendering it completely useless, dragging it a distance of at least one-half mile before the train could be brought to a stop. In count 1 of the petition it was alleged that defendants were guilty of the following acts of negligence proximately causing the damages sued for: '(a) In maintaining Hardy's Crossing in Grovetown in a hazardous and dangerous condition, in that the depression between the main line and the sidetrack was such that it brought the truck to a stop whereby at the speed of from three to four miles per hour the front wheels of the truck could not be forced over the rails without the motor on said truck choking down as was done. (b) In failing to maintain any crossing in Grovetown by which travelers on State Highway No. 223 and particularly trucks which were pulling house-trailers, with approximately ten inches clearance might safely negotiate and cross said railroad tracks without obstruction. (c) In failing to maintain any warning signal at Hardy's Crossing as to the approach of trains, whereby persons who attempt to cross might be warned for at least one minute before a train crossed over said crossing. (d) In operating a long and heavy train, powered by three diesel units, over its line of railroad tracks, and through the incorporated town of Grovetown at a speed greater than was reasonable and safe, considering the density of population and the great number of vehicles used at the crossings daily. (e) In approaching said crossing in a populous community, and rounding a curve, whereby the engineer had no view of the crossing until he was approximately two hundred yards therefrom, at the reckless speed of fifty miles per hour, which rendered the train out of control, whereby it could not be stopped until it had passed over Hardy's Crossing, and the main crossing, and the east crossing, no matter what emergency might exist to require the stopping of the train before reaching the said crossing. (f) In failing to slow the locomotive train as it approached said curve and said crossing so as to have the train under control at said Hardy's public Crossing. (g) In operating said train in such fashion that it claimed the right of way over all motor vehicles and pedestrians seeking to use public crossing, oblivious to their situation as it sped through the town of Grovetown at the aforementioned reckless speed while out of control.'

In count 2 of the petition plaintiff incorporated all of the paragraphs of count 1 respecting the manner in which the collision occurred, and then alleged that the conduct of the defendants' engineer amounted to a conscious indifference to the consequences which was equivalent to wilfulness and wantonness in the following particulars: '(a) In approaching said crossing in a populous community, and rounding a curve, whereby the engineer had no view of the crossing until he was approximately two hundred yards therefrom, at the reckless speed of at least fifty miles per hour, which rendered the train out of control, whereby it could not be stopped until it had passed over Hardy's Crossing, and the main crossing, and the east crossing, no matter what emergency might exist to require the stopping of the train before reaching the said crossing, (b) In failing to slow the locomotive train as it approached said curve and said crossing so as to have the train under control at the said Hardy's public Crossing, (c) In operating said train in such fashion that it claimed the right of way over all motor vehicles and pedestrians seeking to use the public crossings, oblivious to their situation and whether they had entered and were upon the crossing before it reached same, as it sped through the town of Grovetown at the aforementioned reckless speed, while out of control.' In count 2 plaintiff sought only to recover punitive damages to deter defendants from committing the wrongful acts again and from injuring or damaging other persons on public crossings. Appended to the original petition were prayers for process and service of process, and 'that plaintiff have and recover of defendants $7,357.95 (amended to $5,537.95) under count 1,' and 'that plaintiff have and recover of the defendants $2,500.00 (amended to $4,250.00) under count 2,' and that the plaintiff have and recover costs of court. The defendants filed general and special demurrers to each count of the petition and filed an answer and a cross action or counterclaim to which the plaintiff filed general and special demurrers. The plaintiff subsequently amended his petition merely to change the amounts of damages claimed as above indicated. The defendants renewed their demurrers and thereafter twice amended their cross action or counterclaim, and the plaintiff renewed his demurrers and filed additional grounds of demurrer thereto after each amendment. The trial court, in separate orders, overruled the plaintiff's renewed demurrers to the defendants' cross action and overruled the defendants' renewed demurrers to the plaintiff's petition. The jury returned a verdict for the plaintiff on count 1 of his petition for $3,800.89, and on count two for $4,250. Judgment was rendered thereon, and the defendants filed their motion for a new trial on the usual general grounds which they subsequently amended by the addition of five special grounds. The court overruled the motion, and the errors assigned here are on that judgment and on the judgment overruling the demurrers to the petition. By cross bill of exceptions plaintiff has assigned error on the overruling of his demurrers to the defendants' cross action and counterclaim.

Fulcher, Fulcher, Hagler & Harper, W. M. Fulcher, A. M. Miller, Augusts, for plaintiff in error.

Randall Evans, Jr., Thomson, for defendant in error.

FRANKUM, Judge.

1. In their argument before this court respecting their assignment of error on the overruling of their demurrers, counsel for the defendants in error insist only that the general demurrer to count 2 should have been sustained, because they contend that count 2 sets forth and seeks to recover no item of recoverable damages. We think that their contention in this regard is meritorious. It will be seen that the plaintiff's prayers with respect to count 2 only seek recovery of punitive damages alleged in that count. While the allegations of fact contained in count 2 might be sufficient to authorize the recovery under that count for special damages or general damages, even though no amounts thereof are alleged in that count or incorporated therein by reference, there is nowhere in the petition any prayer for general or special damages referable to count 2. It is fundamental that each count in a multi-count petition must be complete within itself and state a complete cause of action. Gaither v. Gaither, 206 Ga. 808, 813, 58 S.E.2d 834, and cits. It is equally fundamental that a petition (and for this purpose each separate count must be considered under the foregoing rule as a separate petition) which does not allege and pray for either general, special or nominal damages states no cause of action and is subject to general demurrer. Beverly v. Observer Publishing Co., 88 Ga.App. 490(2, 3), 77 S.E.2d 80; Gartrell v. Afro-American Life Ins. Co., 88 Ga.App. 806, 78 S.E.2d 92; Hitchcock Corp. v. Turner, 102 Ga.App. 452(1), 116...