5 Ga. App. 125 | Ga. Ct. App. | 1908
(After stating the facts as above.)
The plaintiff also makes the point that the defendant filed a general demurrer to his petition, and that the court overruled it, thereby creating a res adjudicata as to the fact that a cause of action is set out; and that as he proved his case as laid, the court should not have granted a nonsuit. The overruling of a demurrer is a judgment binding on the parties, concluding the points of law necessarily involved. That does not mean that the plaintiff is absolutely entitled to recover if he proves his case as laid; for a general demurrer should be overruled, in an action based on negligence, when the jury, from the facts alleged, would be authorized to infer negligence, though they would not be bound to do so. In the light of the principal ruling already made in the foregoing opinion, it will not be necessary for us to discuss the question as to what particular points of law have been settled by the judgment on the demurrer. Judgment reversed.