44 S.E.2d 133 | Ga. Ct. App. | 1947
The petition set forth a cause of action for simple negligence and for wilful misconduct and the court erred in sustaining the general demurrer.
The defendant filed general and special demurrers to the petition on the grounds that it was barred by the statute of limitations, and that the allegations of certain paragraphs were conclusions of the pleader. The court overruled the special demurrers and sustained the general demurrer, and the plaintiff excepted to the sustaining of the general demurrer. Assuming the truth of the allegations of the petition as against demurrer, the petition set forth a cause of action, and the court erred in sustaining the general demurrers. It is alleged that the plaintiff and his scaffold were plainly visible to any motorist or any other person approaching the filling station from any direction; that the defendant drove his truck into the filling station, stopped his truck in front of the plaintiff and his scaffold, got out, went into the office of the filling station, returned a few minutes later, stopped momentarily to speak to a filling-station attendant of and concerning the plaintiff and his work, spoke to the plaintiff in passing, re-entered his truck, and instead of backing up and turning his truck so as to avoid striking the plaintiff and the scaffold, which was some six feet in height and consisted of a plank supported between two ladders, drove straight ahead, running into the scaffold and throwing the plaintiff to the ground, which the plaintiff alleged was gross negligence and wilfully done. The plaintiff further alleged that he was without any fault or negligence on his part. *566
"Although the negligence with which a defendant is charged may be characterized in the plaintiff's petition as wilful and wanton, if the specific facts alleged do not warrant such conclusion the rule of duty which merely requires the exercise of ordinary care and diligence is not affected thereby. . . The legal conclusions of the court are to be drawn from the statements of fact contained in the pleadings, unaffected by the conclusions of the pleader." Western Union Telegraph Co. v.Harris,
We are cognizant of the rulings in Moore v. SeaboardAir-Line Ry. Co.,
The petition set forth a cause of action for simple negligence and the court erred in sustaining the general demurrer. Furthermore, there was no special demurrer to the petition on the ground that it was duplicitous; and under the facts of the petition a cause of action was set forth for wilful misconduct, and the plaintiff would be entitled to present his proof under either theory.
Judgment reversed. Sutton, C. J., and Parker, J., concur.