McConnell v. Frank E. Block Co.

• Decision Date: 26 March 1921
• Docket Number: 11775.
• Citation: 106 S.E. 617,26 Ga.App. 550
• Parties: MCCONNELL v. FRANK E. BLOCK CO.
• Court: Georgia Court of Appeals

106 S.E. 617

26 Ga.App. 550

MCCONNELL v. FRANK E. BLOCK CO.

No. 11775.

Court of Appeals of Georgia, Second Division

March 26, 1921

Error from Superior Court, Fulton County; Geo. L. Bell, Judge.

Action by Charles McConnell against the Frank E. Block Company. Judgment for defendant, and plaintiff brings error. Affirmed.

A. H Davis and R. R. Arnold, both of Atlanta, for plaintiff in error.

Leonard Haas, of Atlanta, for defendant in error.

JENKINS P.J.

1. The rule is well settled that where a question as to the sufficiency of the pleadings has been raised by demurrer, and the pleader seeks to conform to an adverse ruling by amending them so as to meet the objection and prevent a dismissal, he will not thereafter be heard to complain that the antecedent ruling to which he has thus submitted was erroneous, or that the amendment was unnecessary. Glover v. Savannah R Co., 107 Ga. 34 (3) 32 S.E. 876; Rome R. Co. v Thompson, 101 Ga. 26, 28 S.E. 429; Hamer v. White, 110 Ga. 300, 34 S.E. 1001; Atlantic Coast Line R. Co. v. Hart Lbr. Co., 2 Ga.App. 88 (2), 58 S.E. 316; Farrer v. Edwards, 144 Ga. 553, 87 S.E. 777; Clark v. Long, 25 Ga.App. 808, 105 S.E. 654, 655. Where, however, exception is taken not to the antecedent ruling on the original petition, but to a final judgment dismissing the petition on a subsequent adjudication under a renewed demurrer, and after the plaintiff has sought to conform to the previous ruling by exercising the right given him to amend his pleadings so as to meet the objection raised, the antecedent ruling will be accounted as conditional only, especially where it did not expressly dismiss the petition (Ga. Ry. & Power Co. v. Kelly, 150 Ga. 698, 105 S.E. 300; Olds Motor Works v. Olds Oakland Co., 140 Ga. 400, 78 S.E. 902; Clark v. Ganson, 144 Ga. 544, 87 S.E. 670; Steed v. Savage, 121 Ga. 84, 48 S.E. 689; Canuet & Simmons v. Seaboard Air Line Ry., 128 Ga. 41, 57 S.E. 92); and such--"a conditional order of dismissal made on the hearing of a previous demurrer to the original petition concludes nothing" (Folsom v. Howell, 94 Ga. 112, 21 S.E. 136).

2. While it is the duty of the master to use ordinary care in seeing that the machinery furnished to his servants shall be reasonably safe for all persons who operate it with ordinary prudence, and that it shall be equal in kind to that in general use, it is nevertheless true that, in suits for injuries arising from the negligence of the master in failing so to do, it must appear that the master knew, or ought to have known, of such defects, and that the servant injured "did not know and had not equal means of knowing, such fact, and by the exercise of ordinary care could not have known thereof." Civil Code 1910, §§ 3130, 3131.

The rule laid down by this court in King v. Seaboard Air Line Railway, 1 Ga.App. 88, 58 S.E. 252 (followed in Brown v. Rome Foundry Co., 5 Ga.App. 142, 62 S.E 720; Walton v. Ga., Fla. & Ala. Ry. Co., 12 Ga.App. 106, 76 S.E. 1060; Southern Ry. Co. v. Diseker, 13 Ga.App. 799, 81 S.E. 269)--under the facts of that case, that "A servant may recover from his master for an injury occasioned by a dangerous instrumentality negligently maintained by the master, although it appear that the servant was not ignorant of the existence of such dangerous instrumentality, if it is shown that at the time of...