Western & A.R.R. v. Reed

• Decision Date: 17 January 1925
• Docket Number: 15864.
• Citation: 126 S.E. 393,33 Ga.App. 396
• Parties: WESTERN & A. R. R. v. REED.
• Court: Georgia Court of Appeals

126 S.E. 393

33 Ga.App. 396

WESTERN & A. R. R. v. REED.

No. 15864.

Court of Appeals of Georgia, Second Division

January 17, 1925

Syllabus by the Court.

Where under an act of the General Assembly, a corporation's correct name was Western & Atlantic Railroad, and where a suit was brought against it under the name of Western & Atlantic Railroad Company, the action was amendable by striking the word "company." Such amendment having been allowed, neither the petition nor the amendment was subject to any of the grounds of special demurrer complaining of the misnomer.

In this action for a homicide alleged to have been caused by the negligent operation of one of the defendant's railway trains, the petition set forth a cause of action. The allegations severally attacked by special demurrers, some upon the ground that certain information to which the defendant claimed to be entitled was not disclosed, some upon the ground that they were mere conclusions of the pleader and others upon the ground that the facts pleaded did not constitute negligence, were not subject to any of the objections interposed. All the demurrers, both general and special, were properly overruled.

Additional Syllabus by Editorial Staff.

In action for death at crossing, where allegations as to noise of street car were made to illustrate that decedent was not negligent in failing to discover approach of defendant's train, which allegation was not required, petition was not bad for failure to supply information more in detail.

In petition for death at crossing collision, it was not necessary for plaintiff to negative decedent's want of care.

In action for death at crossing, where averment in petition that the engine was not making any noise by exhaust or otherwise and slipped down silently towards crossing was made to show that there was no want of care by decedent, it was good as against special demurrer.

Question of due care of defendant railroad with reference to control it should have over its train in approaching well-traveled crossing being for jury, averment in petition that defendant consented to the establishment of crossing over its right of way, and that engineer negligently failed to have his train under control at crossing, could not be held as matter of law not to charge negligence.

Averment that both engineer and fireman were negligent at crossing, in that they discovered automobile with its back toward train proceeding along road parallel to track towards crossing, and it was apparent it would go on crossing, and ordinary care required crew to give signal before automobile entered crossing to prevent it from getting on same, and yet no signal was given as crossing was approached, was not objectionable conclusion that it was apparent that the backs of driver and other occupants were toward train.

Averment that engineer and fireman, in exercise of ordinary care in looking ahead towards grade crossing, should have discovered automobile before it actually got on crossing and should have given signal by whistle or otherwise to warn decedent and driver of automobile of approach of train, and that they failed so to do, and negligently failed to discover peril of automobile, held to set forth facts amounting to negligence.

Allegation that back and side of decedent in riding in automobile on road parallel to railroad track were towards engine held to indicate that decedent was in diagonal position relative thereto.

Where preliminary facts necessary to raise duty of knowledge have been set forth, allegation in nature of legal conclusion that party to be charged ought, in exercise of ordinary care, to have known, is not objectionable, and in such case it cannot be said that failure to know was not negligence.

Averment in petition that warning signal would have notified driver of automobile and decedent of approach of train, and they would not have gone on crossing had it been given, held not mere conclusion with no facts alleged on which to base it.

Legal results arising from facts alleged may be pleaded in general terms or in form of a legal conclusion, and petition so drawn is good as against demurrer.

A conclusion in a pleading will not be subject to special demurrer, if the inference stated therein may be legitimately drawn from special facts pleaded.

Error from Superior Court, Cobb County; D. W. Blair, Judge.

Action by Nora Reed against the Western & Atlantic Railroad. Judgment for plaintiff, and defendant brings error. Affirmed.

Tye, Peeples & Tye, of Atlanta, and Morris, Hawkins & Wallace, of Marietta, for plaintiff in error.

Reuben R. Arnold and Lowry Arnold, both of Atlanta, and Mozley & Gann, of Marietta, for defendant in error.

BELL J.

1. General and special demurrers to the complaint of Mrs. Nora Reed were overruled, and the defendant excepted. The suit as originally filed was against "Western & Atlantic Railroad Company," and process was issued accordingly. One ground of the original demurrer was that defendant's corporate name is "Western & Atlantic Railroad," and that by such name only should it be sued. The plaintiff offered, and the court allowed, an amendment to the suit, striking the word "company," so that the name of the defendant should read "Western & Atlantic Railroad." The defendant then demurred as follows:

"(1) Defendant demurs to the original petition and moves to strike the same upon the ground and for the reason that it is not brought against the defendant in its proper corporate name; and it is therefore against neither a natural, artificial, or quasi artificial person, and, a real party defendant being essential to a valid suit, the plaintiff's petition should be dismissed.

(2) Defendant demurs to the amendment offered by the plaintiff and moves to strike the same upon the ground and for the reason that there was nothing to amend by, the original petition having been instituted against the 'Western & Atlantic Railroad Company,' whereas, under the laws of the state of Georgia, the defendant's corporate name is 'Western & Atlantic Railroad,' and by such name only can it be sued. The plaintiff's original petition being against neither a natural, artificial, or quasi artificial person, and a real party defendant being an essential to a valid suit, the plaintiff's original petition is a nullity, and there is nothing by which the plaintiff can amend.

(3) Defendant demurs to paragraph 1 of the amendment offered by the plaintiff (in which the word 'company' was stricken from the defendant's name as alleged in the original petition), upon the grounds and for the reasons: (a) It seeks to make a new, different, separate, and distinct party defendant to the suit; (b) it seeks to add thereto a party defendant where none previously existed."

It is true that the defendant's corporate name is as shown in the demurrer (see Ga. Laws, Extraordinary Session, 1915, p. 128), but we nevertheless think that the demurrer was properly overruled.

"All misnomers, whether in the Christian name or surname, made in writs, petitions, bills, or other judicial proceedings on the civil side of the court, shall, on motion be amended and corrected instanter, without working unnecessary delay to the party making the same." Civil Code 1910, § 5686.

This section, which is a codification of the act of 1850, has been held applicable to railroad companies. Rome Railroad Company v. Sullivan, 14 Ga. 277 (3); Johnson v. Central Railroad, 74 Ga. 397; Chattanooga R. Co. v. Jackson, 86 Ga. 676 (1), 13 S.E. 109; Maddox v. Central of Georgia Ry. Co., 110 Ga. 301 (1), 34 S.E. 1036; Atlantic Coast Line R. Co. v. Cook, 6 Ga.App. 128 (1), 64 S.E. 665. Under these decisions the court properly allowed the amendment and was right in subsequently refusing to dismiss the petition merely because the defendant's name was not correctly set forth in the original instance.

To sustain its position the plaintiff in error cites a number of decisions by the Supreme Court, and one by this court, in which it is held that a suit against a county or a municipality, brought in any other than its correct legal name, is a nullity and not subject to amendment. See Storey v. Town of Summerville, 158 Ga. 182 (1), 123 S.E. 139, and other cases therein cited. It is insisted that the decisions of the latter class are controlling upon the question presented, and that those cases to which we have first above referred are distinguishable from the one at bar, in that in none of those cases were the precise questions made by the demurrers in the instant case raised or passed upon. It is also suggested that the two lines of cases referred to are possibly in conflict, and it is requested that unless we can agree with the contention of the plaintiff in error that the suit ought to have been dismissed, we certify the question to the Supreme Court, in order that the several decisions which we have first cited might "be reviewed and overruled * * * because of the conflict between these authorities and those" relied on by the plaintiff in error.

Whether the exact points made by the demurrers in the present case have been raised or passed upon in any of the other cases, we are content to rule that they are untenable in view of the Code section quoted above. While this section of the Code has been held applicable also in the case of a county or a municipality, its application as against parties of this character seems to have been limited to instances where the defendant had appeared and pleaded to the merits in its true name, without raising the objection of misnomer. Commissioners of McIntosh County v. Aiken Canning Co., 123 Ga. 647 (2), 51 S.E. 585; Saunders v Mayor, etc., of Arlington, 147 Ga. 581 (1), 94 S.E. 1022, Ann.Cas. 1918D, 907. It may be that the difference in the...