Summary
In Gregory v. Taylor, 84 Ga. App. 717 (67 S.E.2d 192), it was pointed out that allegations of an injury caused "through some defect... or some cause unknown to the petitioner" are insufficient to withstand a general demurrer.
Summary of this case from Wood v. Hub Motor CompanyOpinion
33709.
DECIDED OCTOBER 11, 1951.
Action for damages; from Colquitt City Court — Judge Cranford. May 14, 1951.
A. J. Shirley, Custer Kirbo, for plaintiff.
Odum Young, Gibson DeLoache, Sam J. Gardner Jr., for defendant.
Properly construed, the petition failed to show any causal connection between the cause of the plaintiff's injuries and any negligence of the defendant; therefore the petition failed to allege a cause of action against the defendant, and the court did not err in sustaining the general demurrer to the petition and in dismissing the action.
DECIDED OCTOBER 11, 1951.
Mrs. W. C. Gregory sued D. Autrey Taylor for the death of her husband, allegedly due to acts of the defendant. The amended petition substantially alleged: that the defendant owned and operated a number of dump trucks; that on or about January 3, 1949, the defendant and his servants were working on and attempting to repair one of such trucks; that in the afternoon, when they had stopped work, the defendant and his servants left the truck with the dump part raised; that on the morning of January 4, 1949, the plaintiff's husband visited the office of the defendant, seeking a job with the defendant; that the defendant related to the plaintiff's husband that he could use him, as the trucks needed cleaning and painting; that the defendant sent the plaintiff's husband to the truck heretofore mentioned with instructions that required the plaintiff's husband to place himself underneath the part that could be lowered and raised; that while the plaintiff's husband was working beneath the raised portion of said truck, through some defect in the truck, or some cause unknown to the plaintiff, the back portion of the truck body, which had been left in a raised position, lowered, and the plaintiff's husband was caught between the body of the truck and the portion of the truck where the body is attached, said truck and truck body mashing the plaintiff's husband in the chest and back, crushing him to death. The amended petition alleges in detail how the truck was left in a defective condition by those who had been working on it January 3rd, and alleges that such defective condition was known to the defendant, but unknown to the plaintiff's husband. A general demurrer to the petition as amended was sustained, the action dismissed, and the plaintiff excepted.
1. The plaintiff in her amended petition goes into great detail in setting out the defective condition of the truck and how that defective condition caused the dump-body of the truck to lower upon her husband, crushing him to death. However, in her amended petition she allowed to remain the allegation: "That while defendant was away, through some defect in the truck, or some cause unknown to the petitioner, the back portion of the truck body which had been left in a raised position, lowered and plaintiff's husband was caught between the body of the truck and the portion of the truck where the body is attached, said truck and truck body mashing the said W. C. Gregory. . ." (Emphasis supplied.) This constitutes alternative pleading that the dump-body of the truck lowered on plaintiff's husband because of the defective condition of the truck or because of "some cause unknown to the petitioner." In cases of alternative pleadings, on general demurrer the petition is construed as alleging only the weaker of the two alternative pleadings. Doyal v. Russell, 183 Ga. 518, 533, 534 ( 189 S.E. 32). Therefore, in the instant case the petition will be construed as alleging that the dump-body of the truck lowered because of "some cause unknown to the petitioner," and properly construed it alleges that such cause was wholly unconnected with the defective condition of the truck and any negligence of the defendant. The only allegations in the amended petition that might give a clue as to what the "unknown cause" might be, are: "All the aforesaid injury and damage was directly and approximately caused by the following acts of negligence on the part of defendant. (a) In owning, operating and parking said trucks close to First Street without placing a fence around the edge of said street, so that the trucks would not be available to the general public. (b) Defendant was negligent in leaving the body part of said truck raised where it could fall or be lowered and cause injury like this one." (Emphasis supplied.) Construing such allegations to mean that the "unknown cause" was that some member of the public came upon the defendant's parking lot and either intentionally or negligently lowered the dump-body onto the plaintiff's husband, in the absence of allegations that it was a practice, about which defendant knew or in the exercise of ordinary care should have known, for members of the general public to come onto his parking lot and tinker with the trucks parked thereon, or in the absence of an allegation that the defendant knew or should have known through the exercise or ordinary care that some member of the general public might come onto the parking lot and tinker with the trucks parked thereon — no negligence is shown on the part of the defendant in failing to erect a fence around his parking lot. No causal connection between the unknown cause and any negligence of the defendant is shown, and for this reason the petition, construed properly, does not allege a cause of action against the defendant. The plaintiff relies on the case of Terry Shipbuilding Corp. v. Griffian, 153 Ga. 390 ( 112 S.E. 374). In that case the gist of the action was that the plaintiff was injured by the acts of the defendant in placing the portable forge too near the hawse-pipe hole and in failing to warn the plaintiff of the danger incident thereto, thus creating an unsafe place to work. It was not alleged that the placing of the forge too near the hawse-hole or some cause unknown to the plaintiff caused his injuries. It was alleged that the forge was upset in some manner unknown to the plaintiff, and the court construed this allegation as alleging an "intervening event" which did not break the causal connection between the placing of the forge too near the hawse-hole and the injury of the plaintiff. There the placing of the forge too near the hawse-hole created the unsafe place to work, which was dangerous, and the upsetting of the forge in a manner unknown to the plaintiff was merely the agency which activated the dangerous condition so that it injured the plaintiff. In the instant case, the allegation was not that the dangerous condition of the truck was made active by an unknown cause; but it was alleged that the cause of the injuries was the dangerous condition of the truck or some cause unknown to the plaintiff. It is evident that the allegation, "or some cause unknown to the petitioner," was intended to be left in the amended petition and was not left in the amended petition through inadvertence. Such allegation was in the original petition as a part of paragraph 8. Paragraph 8 was amended by striking certain portions thereof, the above allegation not being one of those stricken; and in her restatement in the amendment as to how the paragraph should read as amended, the plaintiff allowed such allegation to remain.
The court did not err in sustaining the general demurrer to the amended petition and in dismissing the action.
Judgment affirmed. Sutton, C. J., and Worrill, J., concur.