Hillhouse v. C. W. Matthews Contracting Co.
112 Ga. App. 73
Ga. Ct. App.
1965
Check Treatment

J. BREWER POPE v. W. F. POPE et al.

Court of Appeals of Georgia

112 Ga. App. 73

The record in this case clearly discloses that the processioners did not locate and mark anew an existing dividing line between the property of J. Brewer Pope and that of W. F. Pope and L. R. Goodson but that they established a new line, based on the contentions and conflicting claims of title of the parties involved, where no boundary line had been previously established. The processioners were thus acting without authority of law, as processioning is not a substitute for an action to try conflicting claims of title to land (, supra; , supra; , supra); and a finding against their return was demanded. The jury by its verdict, however, not only found against the return of the processioners, but attempted to set up another line as the true dividing line. This the jury could not do, for there was no evidence of any definite and ascertainable dividing line having been established between the lands of the parties in dispute here whose muniments of title called for different lines as the common boundary. “A verdict finding against the return of the processioners, and where the evidence is not sufficiently specific and definite and certain to establish some other line, the issue as to the dividing line stands as though the processioning had never been procured. .” .

The remedy of processioning was thus unavailing to these parties, whose dispute is one of title and not merely boundary, and the orders of the trial court denying the motion to dismiss the return and to set aside the verdict of the jury are reversed with direction that the proceeding be dismissed as to the parties to this appeal. , supra.

Judgment reversed with direction. Felton, C. J., and Deen, J., concur.

HILLHOUSE v. C. W. MATTHEWS CONTRACTING COMPANY.

41343

Court of Appeals of Georgia

June 24, 1965

Rehearing July 13, 1965.

112 Ga. App. 73

SUBMITTED JUNE 8, 1965

Johnson & Johnson, Jean E. Johnson, Jr., for plaintiff in error.

R. M. Reed, contra.

NICHOLS, Presiding Judge. “It is a well settled rule that pleadings must be construed in the light of their omissions as well as their averments. ; .” . And if an inference unfavorable to the right of the party claiming a right under such pleadings may be fairly drawn from the facts stated therein, such inference will prevail in determining the rights of the parties. See , and citations.

The plaintiff alleged that he gave a turn signal and proceeded to make a left turn at a time when the intersection was clear of oncoming traffic. However, there was no allegation that there was no oncoming traffic “so close thereto as to constitute an immediate hazard,” as required by Code Ann. § 68-1651, before the plaintiff would obtain the right of way in such intersection. Nor did the allegation that the plaintiff observed the defendant‘s truck after he had reached the southeast corner of such intersection show such oncoming traffic was not an immediate hazard at the time the plaintiff began to make his left turn, there being no facts alleged as to why the defendant‘s truck was not visible to the plaintiff.

Therefore, construing the petition in the light of its averments as well as its omissions, under Code § 105-603, the plaintiff, by the exercise of ordinary care, could have avoided the consequences of the defendant‘s negligence by waiting until oncoming traffic was not so close as to constitute an immediate hazard, and the allegations of negligence all being allegations of acts observable to the plaintiff if he had looked, and based, either directly or indirectly, on the excessive speed of the defendant‘s agent, failed to set forth a cause of action against the defendant, and the judgment of the trial court sustaining the defendant‘s general demurrer was not error for any reason assigned.

Judgment affirmed. Eberhardt, J., concurs. Pannell, J., concurs, specially.

PANNELL, Judge, concurring specially. I cannot agree that the failure on the part of the plaintiff to allege the existence of all the requirements of Art. IX, § 73 of the Act of 1953 approved January 11, 1954 (Ga. L. 1953, Nov. Sess., pp. 556, 590; Code Ann. § 68-1651), necessary to entitle plaintiff to the right of way when making a left turn at an intersection, precludes a recovery as a matter of law under the facts of the present case. I agree, however, that the failure of the plaintiff to look for oncoming traffic before making a left turn at the intersection does bar his recovery, and for this latter reason only I concur in the judgment affirming the trial judge in sustaining the general demurrer to the petition.