Williams v. Seaboard Air Line Ry. Co.

• Decision Date: 15 February 1928
• Docket Number: 5922,5940.
• Citation: 141 S.E. 805,165 Ga. 655
• Parties: WILLIAMS v. SEABOARD AIR LINE RY. CO. SEABOARD AIR LINE RY. CO. v. WILLIAMS.
• Court: Georgia Supreme Court

141 S.E. 805

165 Ga. 655

WILLIAMS v. SEABOARD AIR LINE RY. CO.

SEABOARD AIR LINE RY. CO. v. WILLIAMS.

Nos. 5922, 5940.

Supreme Court of Georgia

February 15, 1928

Syllabus by the Court.

The motion to dismiss the writ of error is denied. Where the purpose of a bill of exceptions is to correct an error in the trial antecedent to the final judgment which necessarily controlled the result, the alleged error being of such nature that the result was a natural and legal consequence of the antecedent ruling which is assigned as error, particularity of specification is not required in the assignment of error to the final judgment. There must be a valid assignment of error as to the error which it is claimed controlled the final judgment, "and, if it is specifically made the subject of exception and of proper assignment of error, and the final judgment is excepted to, not because of additional error in it, but because of the antecedent ruling complained of, which entered into and affected the further progress or final result of the case, a general exception to the final judgment *** will suffice to give the reviewing court jurisdiction."

The court erred in sustaining the demurrers and in striking paragraphs 4, 5, 7, and 10 of the petition, and this error was so vital and controlling upon the final result in the case that all further proceedings in the trial were nugatory. The petition, properly construed, was an action to recover damages for the defendant's interference with the plaintiff's use and enjoyment of his own property in which the defendant had no right, title, or interest, and to restrain the defendant from interfering with the plaintiff's use of his own property in the future. Upon demurrer, the plaintiff's ownership and the absence of any right of the defendant in the premises were admitted. From sustaining the demurrers, the subsequent exclusion of the evidence which plaintiff sought to introduce followed as a natural consequence in consonance and accord with the prior ruling of the court upon the demurrers. Thereby the plaintiff was deprived of the right of proving his case as laid. The ruling upon demurrer cut off a material part of the case the plaintiff sought to set up in his pleading and to base a recovery upon. Wright v. Hollywood Cemetery Corp., 112 Ga. 884 (6), 38 S.E. 94, 52 L.R.A. 621.

The demurrers should have been overruled, because each of them was defective or "speaking." "Demurrer, being itself a critic, must be free from imperfections." None of the demurrers indicated or suggested, when considered in connection with the allegations of the petition as a whole any reason why the information sought to be elicited by demurrer was necessary to complete or perfect the plaintiff's cause of action as stated, or raised any legal inference that the information sought to be elicited was in any wise material to the issues presented by the petition. For a demurrer to be effective, it must attack "a defect in direct line of the pleadings, as they are constituted, and not one which might have arisen had the pleadings been different." Each of the demurrers in the instant case impliedly assumed some right on the part of the defendant to use the tracks, which is not authorized by any allegation in the petition; and "ordinarily the plaintiff, in his petition, need not anticipate or negative a possible defense." "A ground of demurrer to a petition, which assumes that it contains an allegation of fact which it does not contain, is 'speaking' in character, and therefore not maintainable." If the facts thus inferentially assumed are matters of defense, they should be pleaded.

[Ed Note.-For other definitions, see Words and Phrases, First and Second Series, Speaking Demurrer.]

The plaintiff is entitled to prove, as essential facts establishing the nature and extent of the trespass as alleged, by proving, if he can, the allegations contained in the four paragraphs of the petition that were stricken; and it was error to sustain the demurrers to these paragraphs.

In view of the foregoing rulings, it follows that the court did not err in overruling the general demurrer to the petition. The judgment upon the cross-bill of exceptions is affirmed.

Error from Superior Court, Muscogee County; C. F. McLaughlin Judge.

Petition by P.J. Williams, administrator, against the Seaboard Air Line Railway Company. To review a judgment sustaining special demurrers, plaintiff brings error, and, to review judgment refusing to sustain general demurrer, defendant brings error. Reversed on main bill of exceptions; affirmed on cross-bill.

G. Y Tigner, of Columbus, for plaintiff in error.

W. W. Dykes, of Americus, and Foley & Chappell, of Columbus, for defendant in error.

RUSSELL C.J.

Williams filed a petition seeking damges from the Seaboard Air Line Railway Company for injuries alleged to have been inflicted by a continuing nuisance and continuing trespasses upon certain property of the plaintiff in the city of Columbus. The action was equitable in its nature; it being alleged that the plaintiff had no full and adequate remedy at law. The prayers were:

(1) That the petitioner have judgment against the defendant for the sum of $2,400 for his damages caused by being deprive of his full, free, and unobstructed use and enjoyment of his land by the acts of the defendant as set forth in the petition.

(2) For a perpetual injunction restraining the railroad company from running and operating engines, locomotives, and cars upon said railroad tracks on petitioner's land, and from interfering in any way with the free and full and unobstructed use by petitioner of his land, and from interfering in any way with the enjoyment thereof by petitioner.

(3) For such other and further relief as the nature of the case might require.

After describing the land of which the petitioner alleges himself to be the owner and in possession since July 25, 1913, and stating the grantee, date, and record of the muniments of title under which he claims ownership and possession, the petition alleges:

Paragraph 4: "On petitioner's said land there are placed and located two railroad tracks composed of steel or iron rails and wooden ties on the ground; said tracks extending in a northerly direction from a point near the middle of the south line of his land upon, over, and across the land for the entire distance between said point and the northern line of his said land, which is the south line of Seventh street, and occupying a strip of land about 30 feet in width across the land." The two railroad tracks on petitioner's land are connected with a spur or side track of a named street railroad immediately in the rear of petitioner's premises.

Paragraph 5: "Defendant company is now, and has been for the last four years immediately preceding the filing of this suit, running and operating steam engines and locomotives and cars along and over and upon the two said railroad tracks on petitioner's land."

Paragraph 6: "Defendant company has not now, nor did it ever have any right, title, or interest in petitioner's said land, authorizing it to run or operate steam engines, locomotives, or cars upon said railroad tracks on petitioner's land, or to enter, go upon, or in any wise use or interfere with petitioner's use and enjoyment of said land, or to use and occupy said railroad tracks on petitioner's land."

Paragraph 7: "Defendant company, over the protest and objection of petitioner, and against his will, is now and has continuously almost daily for the last four years immediately preceding the filing of this suit been running and operating its cars, steam engines and locomotives on said tracks on petitioner's land, to the constant, continuous annoyance, inconvenience, deprivation, injury, and damage of petitioner in the use and enjoyment of his said land."

In paragraphs 8 and 9 it is alleged that the petitioner has a refinery for his business of refining and manufacturing cane sirup on his described premises, and that in the refining, manufacture, and care of the products of his business it is necessary that a high state of sanitary cleanliness be maintained.

Paragraph 10: "By the running and operation of its engines and cars on the tracks of railroad on petitioner's land as aforesaid, great volumes of smoke, noxious odors, and gases are emitted and thrown forth, and cinders and dust arise from such operation, and are and have been for the last four years continuously going upon, against, and into petitioner's said plant and building, rendering it more difficult and expensive to petitioner to protect his products and keep and maintain them in a wholesome, healthy, and merchantable condition than would be required but for the running and operation of said engines and cars on petitioner's land, and rendering petitioner's office and building very uncomfortable and disagreeable to him, his servants and employees, and those coming to do business with him."

The petitioner alleges that continuously for the past four years his building and warehouse, about 50 feet distant, have been subject to be destroyed by fire from burning cinders and sparks emitted from engines and locomotives running on the railroad tracks on his land; that the running of cars and engines at irregular but frequent times and at dangerous rates of speed constitutes a continuing menace to his safety and that of his employees, obstructs and interferes with him in the use and enjoyment of his property, to his annoyance inconvenience, deprivation, injury, and damage; that he has thus been deprived of the full, free, and unobstructed use of his property, and the value of its use during the past four years amounts to $600 per annum; that the constant running and operation of locomotives and cars on the tracks...