These appeals and cross appeals are from orders of the trial judge. (1) Orders partially sustaining defendant’s motions to strike, and impliedly overruling in part, entered November 5, 1973; and, (2) orders overruling defendant’s motions for summary judgment entered the same date. The orders were certified by the trial judge for immediate review pursuant to Ga. L. 1965, p. 18; 1968, pp. 1072, 1073 (Code Ann. § 6-701 (a2)).
The paragraphs of the complaints, pertinent to the motions to strike, are identical in each complaint, although differently numbered. For the purposes of this decision we will deal with the allegations of the complaint in the Pauline McGivern case, the rulings in reference to which will control both cases. The complaint in this portion contained the following allegations, Par. 10A by amendment: "8.
There was no lifeguard or experienced person present to revive Plaintiff’s son
and there was no safety equipment nor persons present capable of operating any safety equipment
and there was no telephone immediately available by which help could be summoned, and Plaintiff’s
son died. 9.
Although Defendant had been operating the swimming pool where the incident occurred for a long period of time,
Defendant had failed to have available any attendant or
lifeguard
properly instructed in the art and methods of life saving or artificial resuscitation, and by the time properly trained persons capable of giving such aid could be brought to the scene, Plaintiffs son was dead. 10. At said time and place, there was in full force and effect a duly enacted Ordinance of DeKalb County, Georgia, which the Defendant is subject to, as follows:
Code of DeKalb County, Georgia, Appendix I, Article XIII, Section 192.
'During bathing hours, there shall be present at each pool at least one competent attendant who shall actively supervise the
The evidence adduced on the motion for summary judgment showed substantially the following facts: Appellant insurance company owns and operates the Beacon Hill Apartments in DeKalb County, Georgia, which complex includes a swimming pool. On July 3,1973, Mrs. Pauline McGivern and her husband, Mr. Charles R. McGivern, the cross appellants, were seated in chairs in the vicinity of the pool talking to a Mr. Driver and other residents while the McGivern children and others played in the pool. Subsequently, an unidentified child approached the McGiverns and remarked that their son, Arthur, age 12, had been lying face down in the water for quite a while. Because Arthur was given to testing his endurance by holding his breath under water in that manner, Mr. McGivern and Mr. Driver walked to the end
1. Appellant, Northwestern Mutual, complains that the trial court erred in finding that the swimming pool in the instant case is a semi-public pool and governed by the Code of DeKalb County, State of Georgia, Section 189, et séq., which requires certain standards be met if "a public, semi-public or institutional swimming pool is operated.” From the factual recitation in the pleadings, both the public and institutional categories are excluded. Appellant urges that the prefix "semi” in the ordinance has no meaning of sufficient certainty so as to advise citizens of what course of conduct they must follow in regard to the intendment of the Code, id., in relation to swimming pools. We agree only that some of the language in the ordinance is not plain; it does not have an exact or concrete meaning. The language, therefore, needs interpretation.
Carroll v.
Ragsdale,
2. Appellant enumerates that the trial court erred in overruling defendant’s motion for summary judgment. Having found the ordinance valid, its violation constituted negligence per se as relied on by the plaintiff. See
Barrett v. Mayor
&c.
of Savannah,
3. The cross appellants, the McGiverns, complain that the trial court erred in granting, in part, the motion to strike filed by the insurance company, defendant below. The latter complains that error lies in not granting the entire motion to strike.
Section 12 (f) of the Civil Practice Act (Code Ann. § 81A-112 (f)) provides: "Upon motion made by a party within 30 days after the service of the pleading upon him or upon the court’s own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” This Section for all practical purposes, in a decision of this case, is the same as Section 12 (f) of the Federal Rules of Civil Procedure. We may look to this rule and the Federal decisions thereunder, therefore, to aid us in determining the purpose of
(a) The trial judge’s order indicates clearly that he struck certain language from the various allegations of negligence in paragraph 11 of the complaint based on the fact that these alleged failures to have certain equipment and personnel were as to persons and equipment not required by the DeKalb County Ordinance. As we construe the complaint, these allegations of negligence in paragraph 11 were allegations made independent of any violation of the DeKalb ordinance and were not intended to be allegations of negligence per se, nor were they designated as such, but were denominated gross negligence. It may be that the trial judge was misled by the opening language of paragraph 12 immediately following to wit: "Defendant’s violations of the DeKalb
(b) We do further hold, however, that the language as to persons and equipment stricken from the allegations of negligence in paragraph 11 of the complaint do not clearly appear to have no possible bearing on the subject matter of the litigation; nor can it be said without doubt that under any contingency these allegations do not raise an issue. For this reason, also, it was error to strike the language in these allegations above referred to.
(c) There was no error, however, in striking from paragraph 12, which contained purported allegations of violations of the DeKalb County ordinance, those allegations relating to the failure to have such persons and equipment at the swimming pool as were not specifically required by the ordinance.
(d) Nor was there error, after hearing evidence on the motion for summary judgment, in striking those portions of the petition and prayer as sought punitive damages and attorney fees based upon an alleged wilful violation of the DeKalb County ordinance.
(e) Nor was there error, on grounds of pleading evidence, in striking paragraph 10A attaching the "Recommended Standards of the Georgia Department of Public Health” relating to swimming pools which, including the title, consisted of 23 printed pages containing 30 sections, some with numerous subdivisions
(f) There was no harmful error, if any, in overruling the remaining grounds of the motion to strike, nor in sustaining the other grounds not herein specifically discussed.
4. No consideration has been given to the "nunc pro tunc” order in each case dated and entered after the appeals and cross appeals were entered and one day before the cases were docketed in this court, as we have no jurisdiction to do so.
Judgrrient affirmed in case No. 49021 and case No. 49023. Judgment reversed in case No. 49022 and case No. 49024.