Old Colony Ins. Co. v. Dressel
| Decision Date | 13 October 1964 |
| Docket Number | No. 22519,22519 |
| Citation | 138 S.E.2d 886,220 Ga. 354 |
| Parties | OLD COLONY INSURANCE COMPANY v. Wyman M. DRESSEL et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. Where, as in the instant case, the Court of Appeals pronounces rules of pleading vitally affecting the trial of cases, which appear to be erroneous and will become precedents unless corrected, this court will grant certiorari in order that such holdings may be reviewed.
2. Where the Court of Appeals correctly holds the evidence submitted upon a trial is sufficient to sustain the verdict returned by the jury, the judgment will not be reversed on certiorari.
In the present case suit was brought on an insurance policy which furnished coverage on a certain horse killed 'as the direct result of a windstorm.' The petition alleged: To this allegation the defendant insurance company specially demurred on the ground: The judge of the superior court overruled the special demurrer.
The Court of Appeals affirmed the judgment. Old Colony Ins. Co. v. Dressel, 109 Ga.App. 465, 136 S.E.2d 525. However, in the opinion the affirmance was not for the reason that the ruling on the demurrer was correct, but upon the premise that if the trial judge erred in overruling the special demurrer the error was harmless because the record did not affirmatively disclose that the defendant was not in possession of the information called for by the demurrer prior to the trial of the case. In this connection the opinion pointed out that the information as to the exact manner in which the horse came to its death could have been obtained by the use of depositions or through pre-trial proceedings.
Fulcher, Fulcher, Hagler & Harper, A. Montague Miller, Augusta, for plaintiff in error.
No appearance for defendants in error.
1. The office of a special demurrer is to compel the opposite party to plead his cause or defense plainly, fully and distinctly. See Code § 81-101. By requiring a plaintiff to set forth the facts upon which he relies for recovery with requisite clarity and fullness two purposes are accomplished. First, the defendant is informed of the facts to which he is entitled in the preparation of his defense. Where the purpose of the special demurrer is for the single purpose of obtaining such information and it clearly and affirmatively appears from the record that the defendant had full knowledge of the information sought, prior to the trial, there is no hurtful error in overruling the special demurrer. Aycock v. Williams, 185 Ga. 585, 196 S.E. 54; Glover v. Maddox, 98 Ga.App. 548(2), 106 S.E.2d 288. The second purpose of requiring the plaintiff to plead his case plainly and with reasonable fullness is to enable the demurring party and the court to ascertain whether the facts upon which the plaintiff predicates his cause constitute a cause of action, so that it may fairly appear from the petition whether it is subject to general demurrer. Kemp v. Central of Ga. Rwy. Co., 122 Ga. 559, 561, 50 S.E. 465; Wrightsville & Tennille R. Co. v. Vaughan, 9 Ga.App. 371(2), 71 S.E. 691; Porter v. Prudential Ins. Co., 82 Ga.App. 626, 631, 61 S.E.2d 797. In Alford v. Zeigler, 65 Ga.App. 294, 297, 16 S.E.2d 69, 72, it is held: 'The legitimate function of a special demurrer is to compel the pleader to disclose whether he really has a cause of action or defense.' When this is the object of the special demurrer the defendant is entitled to have the facts set forth with reasonable certainty and fullness, regardless of whether he has knowledge of these facts before the trial.
The defendant has no burden in urging a special demurrer to make it appear that he does not possess knowledge of the facts necessary for the plaintiff to meet the statutory requirements that he set forth his cause 'plainly, fully and distinctly.' Nor does the mere right of the defendant to inquire as to such facts by deposition or through pre-trial procedure debar the defendant's statutory right to specially demurrer to the petition. So we hold that if the defendant in the present case was entitled to the information called for by its special demurrer, the fact that the record did not disclose whether it possessed such information prior to the trial would not render the overruling of the special demurrer harmless error. To correct the Court of Appeals' erroneous pronouncements of the rules of pleadings above discussed this certiorari was granted.
However, the exception taken in the petition for certiorari is to the judgment of the Court of Appeals in affirming the ruling of the trial judge overruling the special demurrer, not simply to the process of reasoning from which the judgment of affirmance resulted. This brings us to the pivotal question as to whether the ruling of the trial judge in passing upon the special demurrer was error. The petition meets the requirements of the statute, Code § 81-101, as stated in Dumas v. Dumas, 206 Ga. 767(3), 58 S.E.2d 830: 'The plaintiff, having plainly and concisely stated the material ultimate facts upon which she intends to recover, is not required to make an exhaustive statement of the exact evidence upon which she relies.' Martin v. Bartow Iron Works, 35 Ga. 320. In several well reasoned opinions of the Court of Appeals it is held that on a suit on an insurance policy a direct and explicit allegation that the loss was caused in the manner covered by the policy is not subject to special demurrer. New York Life Ins. Co. v. Thompson, 45 Ga.App. 638, 641, 165 S.E. 847; Carlyle v. Goettee, 64 Ga.App. 360, 13 S.E.2d 206; American Fire & Cas. Co. v. Barfield, 81 Ga.App. 887, 889, 60 S.E.2d 383. There the policy provided for coverage on certain horses killed as the direct result of a windstorm. The paragraph of the petition demurred to reads that on a certain date 'a certain horse, belonging to plaintiffs was killed as a direct result of a windstorm. * * *' The demurrer is that the exact manner in which the horse was killed is not alleged nor how the...
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