2 Ga. App. 764 | Ga. Ct. App. | 1907
Jarrell brought suit against the American Pipe Bending Machine Company. At the first term, to the petition, a demurrer containing the general ground of no cause of action, and several special grounds, was filed. To meet the demurrer a series of amendments were filed by the plaintiff. The substance of the petition and of the additions made to it by the amendments is as follows, the matter inserted by the amendments being indicated by inclosure in parentheses: (1) Defendant is a corporation, etc. (2) Petitioner is a minor of the age of fourteen years, and was in the employ of the defendant. Defendant knew that he had no experience (petitioner informed defendant that he was without experience), and knowingly put-him to work on a very dangerous machine without warning him of the danger of operating said machine (by the foreman in charge of the works of the defendant company). (3) On March 24, 1906, petitioner was at work upon a machine which had been assigned to him (by the foreman in charge of defendant’s works who directed him how to run the machine, instructing him that if the drill should stop for any cause he was to throw the lever with his left hand, and stop the machine
We think that the petition is sufficient to withstand general demurrer. As to the‘special grounds, it occurs to us that the best way to dispose of them is to take them up seriatim and decide them as if they were a series of questions propounded to us. In the cases of Cedartown Cotton & Export Co. v. Miles, 2 Ga. App. 79, 58 S. E. 289, and Southern States Portland Cement Co. v. Helms, 2 Ga. App. 308, 58 S. E. 524, we discussed at some-length the allegations necessary to a perfect suit by a servant against the master for personal injuries. In this opinion, reference will be frequently made to these two bases, and for brevity they will be cited as the Miles case, and the Helms case, respectively.
Should the demurrer to the above petition have been sustained, . (1) because the same contains no allegations of fact showing that the danger complained of was unknown to the servant? No. Lack of actual knowledge may be stated directly and without elaboration. Miles case. (2) Because the same contains no allegations of fact showing that the danger complained of was known or -ought to have been known by the defendant? No. Miles case,
(6) Should the demurrer to the following portion of paragraph 2 of the petition, to wit, “Defendant knew that he [plaintiff] had no experience,” have been sustained, (a) because there are no allegation's of fact supporting the conclusion so pleaded? No. Total lack of experience is a fact which may be stated directly, just as total lack of knowledge may be. (b) Because there are^no allegations showing what agent or servant of defendant whose knowledge was binding on it had the knowledge alleged? No. The amendment avoided this ground, (c) Because the expression, “had no experience” is too vague and indefinite to permit or require defendant to join issue thereon? And in what particular plaintiff had no experience, or with reference to what kind and character of work, or machinery, or labor, is in no manner made' plain? Yes. The allegations, as against this special demurrer,, should have gone forward and have shown in what particular the plaintiff was inexperienced. As stated, it is too indefinite in this respect. (7) Should the demurrer to the following portion of paragraph 2 of the petition, to wit, “On a very dangerous machine,” have been sustained, (a) because the same is a mere conclusion unsupported by any allegations of fact, and how and -why and in what particular said machine was “very dangerous” is not set forth; what danger complained of is not stated, and no allegations of fact are made which throw any light on what is meant by said expression “very dangerous?” Yes. See the Miles case
(9) Should the demurrer to the following portion of paragraph 3 of the petition, to wit, “Plaintiff not knowing of its dangerous character,” have been sustained, (a) because there are no facts alleged supporting the conclusion so pleaded ? No. (&) Because there are no facts alleged which show why plaintiff did not know of such dangerous character of the machinery? No. (c) Because there are no facts alleged which show that plaintiff did not have means of knowing such alleged danger equal to those of the master? No. (d) Because there are no facts alleged showing that the plaintiff could not have known of such alleged danger by the exercise of ordinary care? Yes. (10) Should the demurrer to the following portion of paragraph 3 of the petition, to wit, “attempted to stop the machine as he had been directed to do,” have been sustained, (a) Because there are no facts set forth supporting the conclusion therein pleaded? No. (b) Because there are no facts set forth showing what action plaintiff took in attempting to stop the machine? Yes. (c) Because there are no facts alleged which show what he had been directed to do? No. (d) Because there are no facts alleged showing how or in what manner he had been directed to stop the machine? No. (e) Because there are no facts showing who directed him to stop the machine, and when? As to who directed, no; as to when, yes. The averment of a time as to every traversable fact may be compelled by special demurrer. Mandeville Mills v. Dale, 2 Ga. App. 607 58 S. E. 1060. (11) Should the demurrer to the following portion of paragraph 3 of the petition, to wit, “His left hand was thrown violently and suddenly from the lever into the cogs of the machine,” have been sus
(12) Should the demurrer to the following portion of paragraph 4 of the petition, to wit, “[Plaintiff] was in the place assigned to him,” have been sustained, (a) because there are no facts supporting the conclusion so pleaded? No. (&) Because the place referred to is not stated? No. (c) Because there are no facts showing what agent or servant of the defendant so assigned plaintiff to this place? No. (d) Because no facts are set forth which support the allegations that he was so assigned? No. (13) Should the demurrer to the following portion of paragraph 4 of the petition, to wit, “in the discharge of his duties,” have been sustained because the same is a statement merely of a conclusion, without any facts supporting same ? No. '(14) Should the demurrer to the following portion of the petition, to wit, “without fault on his part,” have been sustained because the same is supported by no allegations of fact and is a mere conclusion? No. (15) Should the demurrer to the- following portion of paragraph 4 of the petition, to wit, “Defendants were, negligent in putting said minor at work on a dangerous machine without giving him warning of the danger,” have been sustained, (a) because the same embodies mere conclusions without any allegations of fact supporting same? No. (&) Because neither therein nor elsewhere does it appear what warning should have been given or what danger should have been apprehended, or that said danger materialized in the injury complained of? No. (16) Should the .demurrer to the following portion of paragraph 4 of the petition, to wit, “’Defendants were negligent in not providing a safe place for the child to work,” have been sustained, (a) Because the same is unsupported by any allegations of fact and is a mere conclusion; there are no facts alleged showing wherein the defendants were negligent; there are no facts alleged showing that it did not provide a safe place to work; there are no facts alleged showing that the plaintiff was a child; on the contrary a person over fourteen
If the defendant in this case had filed no special demurrers, the petition would have supported a verdict. The court, as we have held, properly sustained many of the special demurrers. To affirm the judgment generally, since a general demurrer was sustained, would operate as a res adjudicata, barring a subsequent suit on the same cause of action. Judgments based upon mere deficiencies of statement should not operate to preclude substantial rights; as judgments upon the merits of the transaction should. Frequently in cases where we have found that the cause of action was not stated with sufficient certainty, we have affirmed the trial courts in sustaining demurrers; but, by direction, gave leave to amend. In the present case we are not willing to go that far,
Judgment affirmed, with direction.