*1 trial, a new motion denying defendant’s not err amended. Townsend, J., con- MacIntyre, P.J.,
Judgment affirmed. cur, v. EDWARDS. et CO. al. FLINT EXPLOSIVE
33440. July 1951. Decided *7 plaintiffs in error. Lippitt, for Miller, W. H. S. B. Kirbo, contra. Rawls, H. Custer & G. plain suggestion of counsel The P. J.
MacIntyre, by not this be considered tiff, the demurrers to assignment a sufficient there is not court for the reason overruling of lite exceptions pendente to the of error in the together demurrers, followed. The demurrers, will not be record appear in overruling them, with the trial court’s order judge, exceptions, the trial The certified court. bill of amendment allowance said recites, “at the time of the de demurrers plaintiff, urged the defendants day court on the 19th fendants, general and the special, both de all of the overruled September, argument, after grounds, and all of its of the defendants on each murrers ruling, and to said excepted to said order and defendants order, lite pendente to said exceptions their bill tendered and allowed exceptions true, bill was certified to filed signed and filed in said and was ordered the court assigned in September 19, 1950.” Error is said case on pendente lite, and it exceptions exceptions bill on the trial said case exceptions that, “during the recited in the sustain whether to judgment question final arose before original petition . . demurrers of *8 that decided whereupon judge the said . . when and amended . decision . which all of the demurrers he should overrule defend said against the of the contentions was adverse to court, said defendants ruling of the ants, to which and decision except and excepted, there and now each of them then and the court that assign ruling It clear to this as error.” pendente not, in view lite, were exceptions in their defendants, excep pendente the bill of exceptions lite, the of recitals in the error assigning upon case, in the tions, and in view of the record upon the judge but processes the trial contemplative the place demurrers. To overruling the “ruling” actually made, ex- assignment in the of error the any upon construction other spirit nullify lite, think, of the would, we the pendente ceptions connection, 6-1307. this expressed in Code law as § See/ (1) (60 App. Co., v. Cable Ga. American Investment Co. 1037). S. E. sought recovery a on originally filed petition
The defendants, ordinary negligence part on theory of dynamite, Pont, which manufactured the that defendant du it fuse; that fuse, had defective caps, and manufactured through public dynamite, caps, and fuse to the had sold public; items to the dealers, purchase and resell these its who of such Explosive was one Company Flint that the defendant represented plaintiff to the Company had dealers; that the Flint which purpose for suitable for the that the merchandise was of its through one Company intended it was and that Flint according it agents use; him in that he used had instructed its spark delaying instructions, fuse, instead but the such exploded immediately dynamite passed spark of its plaintiff range from before could remove himself thereby. original peti explosion injured and he Thus the was Al action for care. ordinary tion set out lack of cause plaintiff admitted though counsel for the on trial the case pursue this open plaintiff did intend to court that the not theory manu is, defectively that was that fuse petition, allegations were not stricken from the factured, these relation consequently we them their must consider just passing upon the amendment in as the trial demurrers to consider them, subsequent court had without the benefit of the theory abandonment of In order to determine case. ruling error, recognize whether we on the demurrer was rulings harmless special on are not where demurrer reversible theory open the abandonment and that of this of the case presence jury may court and in the have rendered the overruling complaining duplicity demurrer harmless original petition allegations insofar bear contained upon subject. However, upon which the if the amendment relying at the time the statement was made duplicitous, being itself demurrer directed to it on ground, unnecessary then to determine whether it becomes it was harmful for the court to the demurrer after not overrule *9 allegations original of in peti-
abandonment the contained the plaintiff. alleges The by tion counsel for the amendment Company agents employees the and that Flint its and effect the incompetent, employee and were who instructed that (the plaintiff equipment caps, and dynamite, use unqualified give fuse) incompetent and was to such instruc- incompetent personnel tions; employment of such that contrary industry; to custom of and that the defendants "brazenly, wilfully wantonly and violated customs regard comply failed to with industry” “negligently and this and any customs”; that a custom of said it is of manufacturers operation de- periodic surveys to of the entire to dealers make existing specific and to hazards under local termine conditions violated this cus- personnel properly; train that the defendants dynamite, failing surveys by proper allowing tom make and proper instructions, and fuse sold caps, to be to users without could injured, injury result which the ordinary prevented by been in the exercise have com- industry requires only care; that that custom and negligently petent engaged, the defendants dealers but and incompetent wilfully be sold permitted by said articles to malicious- unqualified dealers; that the manufacturer defendant articles ly, wilfully negligently procured to sell the dealer wil- maliciously, knowing employees incompetent, its were fully sell articles negligently procured the dealer Supple- Chapter the Code Annotated violation 88-8 and, plain- ment; finally that said malicious conduct caused injuries. tiff’s wilful- charge malice, paragraphs of the amendment
The negligence. considered gross The latter is ness, wantonness allegations by charged been this court have because slightest degree of “by the amendment that the exercise plain- injuries care could have avoided the the defendants court Ordinary negligence tiff.” considered also “negligent” used term charged in view of the amendment charge and the places throughout the amendment in several ordinary “could have exercise defendant previously As plaintiff.” prevented care -the1 peti- on ground pointed out, the demurrer is based *10 recovery ordinary negli- in that it seeks for duplicitous tion is in one waton misconduct count. gence and wilful and ‘negligence’ incompati- and “Since the words ‘wilfulness’ are sounding ordinary negligence is one ble, a cause of action another, a sounding in wilful thing, and one misconduct proceed upon plaintiff single theory a count must one or it, permitting cannot, in a statute other, and the absence of negligence wil- allege simple [ordinary] both such count Buffington Co., App. v. A. R. 47 ful misconduct.” B. & C. Ga. 85 (169 756). negligence cannot be “An wanton S. E. action for over simple negligence in the count joined with same one Ry. v. appropriate demurrer.” Co. objection of Southern (190 195). App. the conduct McCrary, 55 Ga. 406 S. E. Here trade al- violating of the defendants customs grossly leged malicious, wanton, and wilful, is characterized as have ordinary care; and, we should negligent, and as lack of plaintiff relying upon malicious, wilful, said that was al- recovery from what is theory wanton of misconduct as his leged mali- paragraph amendment, in the last “the said . . caused the part cious conduct on the of allegation in the injuries plaintiff,” for the but care ordinary amendment which the exercise of states that prevented injuries the defendants could avoided or have thing! plaintiff, quite to the another It plaintiff duty is true that where a owes the defendant a no than ordinary care, use more the fact that the has gross neg- characterized the defendant’s as wanton conduct ligence, prove if recovery will not defeat his facts guilty defendant was than ordinary of no more since negligence, legal from the “the conclusions of the court are to be drawn of pleadings statements fact contained in the unaffected pleader.” Manufacturing conclusions of Dowman-Dozier (114 815). Co. Ry. App. v. Central Ga. 29 Co., Ga. 187 S. E. of Telegraph App. See Western Union 6 Harris, also Co. v. Ga. 260 (64 (152 (2) 1123); App. S. E. v. 4 Ogletree, Blanchard Ga. 116). prove S. E. And to wantonness must a there be more than mere of a statutory duty, omission some affirmative evi- dence from which consequences a conscious indifference to the may be drawn. App. 212, Edwards v. A. Co., B. & C. R. 63 Ga. 449). a S. E. have to do with 2d, All of these cases upon the case, of the evidence the trial
consideration charge In the court in relation thereto. Blanchard made specifically pointed objection it that no was supra, was out addition characterized the same amendment which or- part constituting a lack of acts on the the defendant timely Here, dinary slight rather care. a care than lack allegations the amend- special interposed demurrer es- ground duplicity. amendment, We ment on the think the against pecially construed, be, strongly it as must most pleader, amendment on cause showed an intent base from different misconduct, very action for which is malicious *11 (malicious ordinary negligence misconduct in it show's that shows) an intent had affirmative to do harm. The defendants right proper to plaintiff a at the time to cause the to elect as proceed theory ordinary negligence whether would on of he a pleadings theory the misconduct, otherwise a of malicious the defendants. confusing prejudicial be to jury would the and to Further, argued that of such words if should be the use it in “wilful,” repeated “wanton,” many and “malicious” times to amendment, of defendants change duty did not be it plaintiff conclusions, and must were therefore mere pointed allega- out that the defendants also demurred these to ground they tions on the of and pleader, were conclusions they right had if were they a to have them stricken as such be wantonness or showing not to and considered, if no facts regard effect properly pleaded. malice to the were Without allegations in plaintiff contained of the amendment of the original the cause petition, conclusively his showed it- negligence, based the amendment ordinary action to be on this based duplicitous subject demurrer on self was and to the 6, ground. overruling 5, The trial court erred demurrers 3, Mac- petition. 7 paragraphs 25, 30, 33, and 8 34 and 35 to Intyre, J., P. dissents. “Likewise, said portion paragraph 27,
A as follows: explosives and up defendants failed follow use of thereby the South permitted of accidents caused and series demurred Georgia articles,” area use of said was west from and immaterial. ground the same is irrelevant to on that
389 negli negligence of, or complained Whether or not the similar responsible gence part on the in defendants, for juries question, to others on occasions from one in different generally relating and relevant, is evidence thereto would not generally be Code, not admissible. 38-202. As stated § (32 904), Ry. Central v. 73 S. E. Georgia Co. 107 Ga. Ross, resulted might perfectly be true that the accidents had it other alleged yet there negligence defendants, from the this might liability no on have type negligence for that unless shown to same on dif existed as him. Similar acts or omissions other and prove generally like acts ferent occasions are not admissible place. at a time Butler v. Central or omissions different 834). Ry. App. (5) (151 41 S. E. See also Co., Ga. Ga. 115 App. (188 E. 282); Bazemore v. Ga. S. Sweat v. 54 444 Howell, 66). Foster, App. 28 Ga. S. It 360 E. follows overruling special paragraph erred in court demurrer petition. ruling, however, ruling made division This view duplicitous in at- opinion holding of this charge negli- tempting to defendant in one count both with gence wilful, misconduct, and with wanton malicious objectionable paragraph do not here would be we hold that latter, incorporated petition charging only if in count of the Davis, since, Railway in Southern Co. v. 132 Ga. as stated *12 involved, E. or intent 131), motive, S. “When malice an may be under issue evidence not so admissible which is “In an simple negligence.” further in that As stated in- injuries alleged to damages have been action to recover for person charged with negligence, flicted reason before the negligence negligence guilty wanton can be held of wilful or against special de- the petition, evidence as must show [or would allege] knew his conduct properly must that he murrer, attendant circumstances or on account of the injury, inflict that, knowledge which he him, were known to or with which con- probable consequence his chargeable, or inevitable injury, reckless to to inflict and with indifference be duct would or act, conduct he committeed the consequence of such injury.” avoid threatened On duty to omitted to do his showing a reck- question of wantonness as illustrated acts in sup- consequences, pleadings and evidence indifference to less violating port thereof to the effect explosives industry by turning the sale of the customs of over ex- previous from incompetent personnel, untrained knew to probably part perience negligence their would that such on such plaintiff they knew that result in to the because past in similar part had resulted carelessness on their the conse- injuries indifference to others, that, but utter they blindly in of conduct quences continued a course result in disaster for experience taught only had could them consequences indifference to purchaser, then such a reckless malice question of known them be admissible on would be on misconduct, would not admissible or wanton but it whether or negligent,, question of whether act itself was Since injury. negligence proximate cause of was the mis- and wilful alleges simple negligence both petition para- reason, for that demurrable conduct one count although plead- demurrable, such graph 27 of the amendment is upon based wanton ing proper would in a count of be knowl- pertinent to show misconduct, it would be or malicious MacIntyre, defendants. part edge, malice and intent on specially. J., P. concurs follows: “The reads
Paragraph the amendment 34 of wil maliciously, & Co. E. DeNemours I. DuPont defendant Explosive Flint defendant, fully negligently procured the Chapter in violation of said articles to to sell Company, knowing that Georgia, 1933, Annotated Code of 88 of the qualify could not Company had not and Explosive said Flint de paragrapah was chapter.” This under said for a license (cid:127) immaterial. murred as irrelevant and it stating that shall (Ann. 88-802, after Supp.) Code § possess or con- corporation own, any person unlawful high other guncotton any nitroglycerine, dynamite, any trol thereof and name registering first amount explosive without per- authorizing such obtaining a license ordinary with the provides the same, possess and control own, corporation son or *13 if a license refuse to issue ordinary may “The follows: as or reliable sufficiently not applicant is fact that the he finds as 391 or possess explosives lacks suitable facilities experienced to involving moral of a crime therefor, has ever been convicted States.” turpitude disloyal hostile to the United is to defendant simple negligence, In an action for failure of the performance of thing, negligent have a license to do admissible, injury, is not alleged to be cause of relevant not had such license is whether or not defendant negligent, or he was question or material of whether on plaintiff’s injury. negligence whether his was the cause of App. 897 Aycock Co., See v. 60 Ga. Peaslee-Gaulbert Paint &c. Co., 39 Ga. (5 Georgia v. Power 2d, 598); 899 S. E. Farmer (1), R. v. Reed 35 App. (2) 40); E. & Atlantic S. Western 80 Ga. App. (4) (134 Lofton, v. 134); Ga. E. Andrews S. App. (1) (57 338). However, in Southern 2d, E. as stated S. in or intent is Ry. motive, malice Davis, supra, Co. v. “When issue may be admissible which is not so under an volved, evidence the action negligence.” simple Here it is contended indus Company violating of the du Pont the customs of the try turning explosives to untrained over the sale of the reckless incompetent personnel knowingly acted in utter and proof knowledge disregard consequences. As personnel incompetence of its dis- this defendant of dealer company, tributor seeks to show explosives, and that unable license to handle the to obtain a Pro- Company. du was known to the defendant Pont fact proved Ex- that Flint viding, upon trial it is of this plainT toward the negligent its conduct plosive Company was negligence proximately resulted in and that this tiff, support against Company, du Pont him, then, turning misconduct in over their allegations of wilful and wanton explosives unqualified personnel violation distribution Company Explosive evidence that Flint trade, custom of the knowledge evidence of qualify license, was unable by them Pont, with a continuance fact du combined of this would be relevant unqualified personnel, make of such use part of the du malice or intent on the knowledge show erred in the trial court Company. petition stands, Pont the As petition. This paragraph 34 of the overruling demurrer to (cid:127) ruling in division- 2 hereof however, ruling, view *14 Paragraph also de- holding petition duplicitous. that is the the because ground, subject murred demurrer to on this is alleged unqualified as knowledge Company that Flint being alleged du Pont only, therein is that constructive it by them Company should have known facts, knew these or constructive ordinary the exercise of care. constitutes This knowledge only. MacIntyre, P.J., dissents. court must passing general demurrer,
In upon the sus though amended the court has consider the as overruled, erroneously special which were tained the demurrers supra. opinion, by 2, 3, and 4 of this demonstrated divisions to cure right to amend plaintiff unquestionably The has striking either duplicitous petition, amended features of the allegations The part by adding or both. count, or another li a ordinary and obtain register with the as to the failure to from resulting allegations and other disasters cense as to stricken. negligent be considered as the defendants’ conduct must concerning allegations remain, then, There in addition to (upon of the negligent faulty manufacture fuse upon trial of the but plaintiff rely did on the last not allegations, again) rely will anticipate he not which we will not in an dynamite among others, sold to the that the recommended they are herently dangerous instrumentality; that fuse) public for blast (the and use dynamite, caps, industry ing stumps; universal custom that it is the involved regulate supervise personnel strictly and custom and article, also sale, distribution, and use of determine operation to surveys entire periodic to make them, and existing under local conditions eliminate the hazards petition further instructions use. The in their give proper all of customs violated these alleges that the manufacturer distri incompetent untrained turning over to the trade distributing product, responsibility butors sole care to select surveys, failed to exercise they make failed to in gave proper that such dealers dealers, or to see competent but, products, they whom sold public structions to inexperienced, incom dealer was knowing defendant supply dealer to continued to allow such unqualified, petent, incompetent improper and dynamite in an public' with universally manner. “It is recognized that a manufacturer or seller of an article which inherently and imminently dangerous to human health, life or or which, although dangerous not in it- self, applied becomes so when to its intended use in the usual and customary manner, any is liable person purchaser whether the person who, or a third without fault on part, his an sustains proximate which is the natural negli- result of the gence in the manufacture or sale of the article.” 45 C. J. 888. What constitutes due care on part of a manufacturer dealer varies with the danger inherent in the sold, article and a greater measure of necessary care is in dealing explosives with *15 dealing than in products with the capable not in- ordinarily of flicting injury. Milton Bradley See Co. v. Cooper, Ga. 79 Ga. of App. (1) (53 302 2d, 761); S. E. Atlantic Co. v. Taylor, 80 Ga. App. (54 910). 25 S. 2d, E. Whether due premises care in the by was exercised defendants, the or whether, alleged, as the adopted measure of care by industry generally fixed by general customs of trade was not met de- by the fendant, and if not, whether his failure to up measure so set in standards custom the industry, was negligence, are
all questions jury. of fact for the The Ap- Circuit of Court peals dealing in with question removal of this v. E. I. Edwards du Pont de Co., Nemours & 2d, 165, 183 Fed. indicated petition that it considered this to set of out a cause and while action, we are not bound by such intimation, this court would hesitate to hold as a matter of law that the distribu- dynamite tion of for blasting sticks use in stumps, carried on by incompetent personnel and untrained adequate super- without in surveys vision the absence of type reg- instruction a ularly given and considered to be necessary by the industry negligence. is not generally, question That ais fact Accordingly jury. hold, we that the trial in court did err not overruling general petition demurrer to the as amended. a However reversal is demanded because in errors over- ruling special in demurrers dealt with the other divisions opinion. of this rulings foregoing opinion
The in the divisions of ren proceedings dered further nugatory the case and the assigned upon overruling errors of the motion for a new trial will not be considered.
394
Judgment Townsend, JJ., reversed. Gardner and concur. specially having MacIntyre, P.J., concurs stated ma- after jority’s opinion. Although concurring I specially. P. concur J.,
MacIntyre, everything do not concur that has judgment reversal, I opinion. majority held and been question dup- 2 on the division think, I with reference to wil- alleged original in the showed licity, that the facts arose misconduct and that such conduct from and wanton ful reasonable care to avoid by the to use failure defendants handling ever-present danger knowing the the plaintiff, imperfect blowing stumps faulty dynamite up with alleged original petition. in the Rail- Southern fuse such (71 11). App. E. I think way Wiley, 249, 251 S. Co. v. Ga. prevent plaintiff, injuring failure petition, they original in the who knew alleged up stumps blow danger undertook to with when he would and wanton mis- defective fuse was wilful dynamite and such App. v. A. B. A. Co., DeVane & Ga. R. conduct. special on 1079). It to me that the seems difficulties S. E. degree, disappear duplicity will, to some if question of alleged petition are circumstances, by the facts as shown negligence, with relation to wilful wanton considered incidentally the fact some misconduct, regardless *16 appropriate petition be to language used in would some negligence. might particularly It be here noted kind of other alleged: original petition, it is in 18 of the “The paragraph that Explosive negligent selling Company, was defendant, Flint him the apprising to the without defective fuse powder in the fuse was distribution of the well uneven Company, a Explosive having 'Flint there been to the known explosions resulting from defective other similar number of Company which were well known the Flint facts sold fuse plaintiff.” Company unknown to the -Flint but This doing which, proved, if allegation fact tended to show :of an knowledge injure it was liable-to wilful with of a act - disregard others, consequences, a for the and thus was with n petition merely I "think the amendments malicious. for wilful and mis- strengthened the caüse' of action wanton
395 negligence conduct and did or not unite another cause of action petition. count of the same specific I think further that the alleged petition facts support legal pleader conclusion of the these facts amounted to wilful or wanton negligence, or misconduct. Ed- wards v. A. B. & C. R. Co., App. (10 63 Ga. 212, 2d, 220 S. E. 449); Western & Reed, (126 Atl. R. v. App. 33 396, Ga. 404 393); S. E. Ry. Southern Liley, Co. v. App. 489, Ga. (43 2d, 576). S. E. I do not think petition that the amended duplicitous is and because some language be may used appropriate simple to an action for negligence does not neces- sarily make it such an action when petition, construed as whole, shows—-asI think it does—that it was an action for wilful negligence and wanton or misconduct. Duncan v. Ga. Ellis, 63 App. 2d, 841). E. S. Nowhere in the specific words, “simple are the negligence” used—this, amended course, controlling—and plain- alone is not I think that the referring tiff’s to a general lack of due care and the use of the “negligence” term necessarily simple does not negligence; mean I think in which the context it plainly is used shows it wilful, means malicious, negligence. wanton “Wilful and negligence,” though wanton it ap- been said by has some of the pellate yet courts to involve a contradictory term, it often has been used appellate decisions of the courts of this State higher aggravated describe or more form negligence than gross negligence; and when so used it means wilful deter- perform mination not to a known disregard duty, a reckless safety of others manifested by the conscious and inten- tional proper omission of care under the circumstances. Co., Edwards v. A. B. supra., & C. R. page at 219. Black’s Law Dictionary, defining injury malicious states that it is “the doing of an act knowledge wilful with injure it liable am regardless other and of circumstances.” injury”: is “Malicious defined an committed wantonly and wilfully & Phrases, p. without-cause. 20 Words 219.
I think the term injury” “malicious as here used action an *17 upon based the concurrent act of the defendants, synony- with mous that term as used in common-law conspiracy. In Railway (65 Co. Davis, Southern v. 132 Ga. 812, 818 S.E.
396 Ala. Hall, Great v.
131), of Alabama So. R. Co. the case an “In quoted as follows: 176), approval with So. in- been injuries alleged to have damages recover for action to person charged with negligence, flicted before the reason of negligence or wanton negligence guilty can be of wilful held inflict would he his conduct evidence must show that knew injury, that, on account the attendant circumstances which charge- knowledge him or which he was were known to with consequence the inevitable of his conduct able, probable and indifference to injury, would to inflict and with reckless consequences act, of such he committed the or omitted conduct duty injury.” do his to avoid the threatened 29, 30, 31,
Paragraphs 27, 28, and which, I merely special allegations of the facts are amended Com- think, support pleader’s du Pont conclusions Flint procured and pany maliciously, wilfully, negligently explosives know- Company to Explosive sell distribute Explosive officers, employees ing that the Flint its Company, explosives and distribute the unqualified were to sell proper manner use instruct this in safe and same'. special foregoing
Having paragraphs stated original I both peti construe and amended concurrence that misconduct, negligence for wilful wanton I tion to be overruling do not think the court erred demurrer to follows: “The also paragraph 27 as last sentence up explosive to follow the use of said and caused and failed Georgia thereby permitted of accidents southwest series Ry. Davis, area from the use of said articles.” Southern Co. v. However, original peti supra, page at if or amended 819. simple allegation, had been I think tion such negligence, properly be stricken. should majority cited opinion,
Under the authorities I think overruling upon the court erred defendants’ demurrer Explosive Com- Flint question of failure of the defendant pany license. obtain