Opinion
41660.
ARGUED JANUARY 10, 1966.
DECIDED FEBRUARY 8, 1966.
Action for damages. Cobb Superior Court. Before Judge Ingram.
Lucio L. Russo, Russo Russo, Ed B. Flowers, for appellant.
Reed, Flournoy Tate, Berl T. Tate, for appellees.
1. There being no facts alleged in support of the conclusion of the plaintiff employee that the defendant employers had implied notice of the alleged danger incident to the plaintiff's employment, the petition did not state a cause of action based upon the failure of the defendants to provide the plaintiff with a safe place to work.
2. In the absence of a request by the plaintiff for leave to amend her petition before the entry of a final judgment dismissing the petition on general demurrer, the trial court did not err in dismissing the petition without granting leave to amend and in refusing to allow the reinstatement of the case in order to permit plaintiff to amend.
ARGUED JANUARY 10, 1966 — DECIDED FEBRUARY 8, 1966.
This was a suit by the plaintiff to recover damages for personal injuries allegedly sustained by her during the course of her employment because of the failure of the defendant employers to provide her with a safe place to work. The trial court sustained the defendants' general demurrers and dismissed the petition without giving the plaintiff leave to amend and the appeal is from that judgment.
1. Counsel for the plaintiff-appellant conceded in his oral argument before this court that the petition did not state a cause of action and was subject to general demurrer since there were no facts alleged therein in support of the conclusion of the pleader that the defendants had implied or constructive knowledge of the alleged danger incident to the plaintiff's employment. See in this connection, Elrod v. Ogles, 78 Ga. App. 376, 382 ( 50 S.E.2d 791).
2. It is strongly contended by counsel for the plaintiff, however, that the trial court erred in dismissing the petition without giving the plaintiff leave to amend. This contention is based upon the fact that the plaintiff had served written interrogatories upon the defendants on the day preceding the ruling on the defendants' general demurrers, and it is argued on behalf of the plaintiff that she should have been given the opportunity to amend her petition after securing answers to these interrogatories based upon the information thus obtained.
This court in Higgins v. Otis Elevator Co., 69 Ga. App. 584, 589 ( 26 S.E.2d 380), held as follows: "Where a judge takes demurrers under advisement and where the right to amend is requested of the court before judgment such right should be given before dismissal of the action or pleadings if there is enough to amend by." The record in this case does not disclose that the plaintiff requested a delay in the consideration by the court of the defendants' general demurrers until answers to the interrogatories were received or that the plaintiff requested leave to amend before the entry of a judgment of dismissal; and it is well settled that in the absence of such request, the plaintiff, after the dismissal of the case, has no right to amend or to a re-instatement of the case in order to permit her to amend, although the trial court may in its discretion allow the case to be reopened during the same term of court. Bowen v. Wyeth, 119 Ga. 687 (3) ( 46 S.E. 823); Ripley v. Eady Mayfield, 106 Ga. 422 (2) ( 32 S.E. 343); Lamar, Taylor Riley Drug Co. v. First Nat. Bank, 127 Ga. 448, 452 ( 56 S.E. 486); Owens v. Rutherford, 200 Ga. 143, 152 ( 36 S.E.2d 309).
The trial court did not err in dismissing the petition without leave to amend and in subsequently denying the plaintiff's motion to amend the judgment of dismissal so as to allow time for amendment.
Judgment affirmed. Bell, P. J., and Eberhardt, J., concur.