46 S.E.2d 620 | Ga. Ct. App. | 1948
Lead Opinion
1. The motion to dismiss the writ of error is without merit.
2. The petition failed to set out a cause of action against the defendant; and the trial judge did not err in sustaining the defendant's general demurrer and in dismissing the action.
The defendant demurred generally to the petition on the ground that it failed to set out a cause of action, and also filed special demurrers. The trial judge sustained the general demurrer and dismissed the petition, to which judgment the plaintiff excepted.
1. There is a motion to dismiss the bill of exceptions on the grounds: (1) said bill of exceptions has no entry of service thereon, nor was service waived; (2) the bill of exceptions *567
does not designate who is the plaintiff in error and who is the defendant in error, nor can the same be determined from a reading of the bill of exceptions. The motion to dismiss can not be sustained. There is now an acknowledgment of service on the bill of exceptions by the defendant's attorney. While no plaintiff in error or defendant in error is designated as such in the bill of exceptions, it appears therefrom who was the plaintiff and who was the defendant in the trial court, that the general demurrer to the petition was sustained and the petition dismissed, and that the plaintiff excepted and brought the case to this court. Consequently, it can be determined from a reading of the bill of exceptions who is the plaintiff in error and who is the defendant in error. Joiner v. Singletary,
2. The trial judge did not err in sustaining the general demurrer to the petition and in dismissing the plaintiff's action, because the petition shows that it was an action for damages for slander. Paragraph 7 of the petition is as follows: "Plaintiff avers that by reason of the speaking of the false, malicious and defamatory words aforesaid he has been and is greatly injured in his said good name, reputation, fame and credit, and brought into public scandal, infamy, and contempt with and among his neighbors;" and paragraph 12 alleges: "Petitioner shows that said remarks of defendant's agent were actionable in nature and damaging within themselves." Other allegations in the petition tend to indicate that it was based squarely on alleged slanderous words uttered respecting the plaintiff, amounting to a slander, and was not an action "for failure to protect the plaintiff as a customer lawfully upon the defendant's premises from injuries caused by the misconduct of the defendant's employees," for which an action will lie under the rulings in Hazelrigs v. High Company,
This case is controlled by the ruling in Behre v. NationalCash Register Co.,
Judgment affirmed, Felton, J., concurs. Sutton, C. J.,concurs specially.
Concurrence Opinion
The following principle was ruled by this court in Southern Grocery Stores v. Keys,
The rulings made in Behre v. National Cash Register Co.,
Accordingly, where it affirmatively appeared that the alleged tortious misconduct of the employee of the defendant corporation to the plaintiff did not occur while the plaintiff was in the store or on the premises of the defendant as an invitee, but that the *570 same took place in the street, after the plaintiff had left the store and premises of the defendant, the petition failed to set out a cause of action against the defendant, and the trial judge did not err in sustaining the defendant's general demurrer and in dismissing the action.