McEntyre v. Clack

• Decision Date: 18 September 1961
• Docket Number: No. 38969,No. 3,38969,3
• Citation: 104 Ga.App. 646,122 S.E.2d 595
• Parties: R. D. McENTYRE v. Mrs. Gimmie CLACK et al
• Court: Georgia Court of Appeals

Page 595

122 S.E.2d 595

104 Ga.App. 646

R. D. McENTYRE v. Mrs. Gimmie CLACK et al.

No. 38969.

Court of Appeals of Georgia, Division No. 3.

Sept. 18, 1961.

Rehearing Denied Oct. 17, 1961.

Syllabus by the Court

1. Where contradictory allegations of the relationship existing between several defendants appear in a single count of a petition, thus making it impossible for the defendants to know which theory of their relationship the plaintiff adopts, a general demurrer to the count is properly sustained.

2. For the reasons stated in the corresponding part of the opinion, the judgment sustaining the general demurrer to count 2 of the petition is reversed and the case remanded for further proceedings.

R. D. McEntyre brought suit for personal injuries against Mrs. Gimmie Clack, The American Mutual Fire Insurance Co. and Gavin McKay. In the interest of clarity and brevity, the parties will be referred to as follows: R. D. McEntyre as plaintiff; Mrs. Gimmie Clack as landlord; The American Mutual Fire Insurance Co. as the insurance company and Gavin McKay as the contractor.

The amended two-count petition alleged in part that the landlord owned a certain house which was partially damaged by fire; that the damage was covered under a fire policy issued by the insurance company; that the contractor was 'employed' to repair the damage; and that the plaintiff, a tenant in the house, was injured by falling into a hole in the floor of the room being repaired. The necessary details of these allegations will appear more fully in the opinion.

The general demurrers of the landlord and the insurance company to both counts of the amended and rewritten petition were sustained. The contractor, being a nonresident of the county where the suit was filed, moved to dismiss as to him for lack of jurisdiction. This motion was granted. Plaintiff excepts to the order sustaining the general demurrer as to both counts.

Head & Head, Hugh G. Head, Jr., Atlanta, for plaintiff in error.

C. W. Eberhardt, Crenshaw, Hansell, Ware, Brandon & Dorsey, Edward E Dorsey, Jule W. Felton, Jr., Chas. Adams, Jr., Atlanta, for defendants in error.

EBERHARDT, Judge.

1. Count 1 of the amended petition makes the following allegations with respect to the relationship that existed between the defendants:

Pargraph 6. 'Under the terms of that written contract of fire insurance, * * * defendant (insurance company) acting for itself to comply with its obligation to pay for or restore the damaged parts of the property, and acting for (the landlord) employed (the contractor) * * * Plaintiff does not know, but defendants well know, the details of the contract of (the contractor's) said employment.'

Paragraph 42. The insurance company and the contractor 'were agents, servants and employees of' the landlord in doing the work.

[104 Ga.App. 648] Paragraph 43. The landlord 'contracted with' the insurance company 'for said repairs and there was no provision in the contract authorizing the employment of independent subcontractors, and (the contractor) was an agent and servant of each of the other defendants.'

Paragraph 44. The contractor and his employees 'were employees, agents and servants of' the insurance company.

The problem presented by these allegations is: What relationship is the plaintiff contending existed between the defendants here? While a general allegation of agency is good against a general demurrer Williams v. Ballenger, 87 Ga.App. 255(2) (73 S.E.2d 509), the allegations here allege several different agencies. Out consideration must involve an application of the well-settled rule that on general demurrer pleadings will be given the construction which is most unfavorable to the pleader.

The fact that the plaintiff alleges that he 'does not know, but the defendants well know, the details of the contract of (the contractor's) employment' does not present any unsurmountable difficulty in this regard. 'Where an agreement between parties in a tort action is set out merely to show the relationship of the parties * * *, such agreement not being the basis of the action, need not be alleged with absolute particularity.' Community Gas Co. v. Williams, 87 Ga.App. 68(4a) (73 S.E.2d 119, 122). While the allegations of a petition must generally have a high degree of certainty about them, the standard of definiteness is not so high where the facts are peculiarly within the knowledge of the opposite parties. Community Gas Co. v. Williams, 87 Ga.App. 68(4b), 73 S.E.2d 119, supra; Beebe v. Smith, 76 Ga.App. 391(2) (46 S.E.2d 212); South Georgia Power Co. v. Beavers, 39 Ga.App. 374(1) (146 S.E. 924); see Caldwell & Co. v. Dulin, 22 Ga. 4(3); Davis v. Homer Lumber Co., 211 Ga. 144(2) (84 S.E.2d 59).

However, the rule lowering the bar of certainty in such cases does not relieve the pleader of the responsibility to have some certainty in his petition. Defendants are entitled to know the theory on which the plaintiff basis his action. 'It is a violation of the very elements of good pleading to compel a defendant to meet a petition * * when the facts relied on for recovery are * * * inconsistent and contradictory.' Byrd v. Riggs, 213 Ga. 593, 596 (100 S.E.2d 453, 456).

Thus the rule that a general demurrer is good against a petition whose allegations are not only vague, uncertain and indefinite, but are also inconsistent and repugnant to one another so that it is impossible to understand upon what theory the plaintiff seeks a recovery. Allison v. Allman, 82 Ga.App. 574 (61 S.E.2d 672); Zachos v. Citizens & Southern Nat. Bank, 213 Ga. 619(3) (100 S.E.2d 418); Duggar v. Quarterman, 191 Ga. 314(4) (12 S.E.2d 302); Whitehurst v. Del-Cook Timber Co., 215 Ga. 124(3) (109 S.E.2d 602); Byrd v. Riggs, 213 Ga. 593, 100 S.E.2d 453, supra; Owen v. S. P. Richards Paper Co., 188 Ga. 258(1) (3 S.E.2d 660); Douglas v. Langford, 206 Ga. 864(2) (59 S.E.2d 383); Jenkins v. Dunlop Tire & Rubber Corp., 71 Ga.App. 255(3) (30 S.E.2d 498). See Henry v. Campbell, 133 Ga. 882 (67 S.E. 390), 27 L.R.A.,N.S., 283, 18 Ann.Cas. 178); Adams v. Johnson, 182 Ga. 478 (185 S.E. 805); Richardson v. Coker, 188 Ga. 170, 175 (3 S.E.2d 636). Compare Griffith v. Moore, 185 Ga. 120(5) (194 S.E. 551) and cases cited. Plaintiff's allegations as contained in the paragraphs quoted above do not meet the standards of this rule so as to enable the defendants to know which theory of their relationship plaintiff adopts. These contradictory allegations all in a single count make it impossible to know who plaintiff contends is the principal and who the agent or who is the master and who the servant. The trial judge referred to this shortcoming in count 1 of the petition when he said in his order: 'I attempted to point out the inconsistencies of the allegations of plaintiff's petition relative to agency and independent contractors. By his re-written petition plaintiff has not removed the mystery * * *'

It was therefore proper to sustain the general demurrer to count 1.

(2) Turning to count 2 of the petition, we find that the relationship of the parties is alleged more specifically. It is alleged that the insurance company was an independent contractor of the landlord and that the contractor was an independent contractor employed by the insurance company.

The general rule is that an employer of an independent contractor is not liable for the contractor's negligence. The exceptions to the rule are embodied in Code § 105-502, which provides: 'The employer is liable for the negligence of the contractor--1. When the work is wrongful in itself, or, if done in the ordinary manner, would result in a nuisance; or, 2. If, according to previous knowledge and experience, the work to be done is in its nature dangerous to others, however carefully performed; or, 3. If the wrongful act is the violation of a duty imposed by express contract upon the employer; or, 4. If the wrongful act is the violation of a duty imposed by statute; or, 5. If the employer retains the right to direct or control the time and manner of executing the...