Harrell v. Graham

70 Ga. App. 178

• Court: Court of Appeals of Georgia
• Decided: November 20, 1943
• Docket: 30117
• Status: Published

Opinion

Felton, J.

The defendant in error concedes that there would be no liability on the part of the plaintiffs in error if they acted in their official capacities, the reason being that no acts of wilful or wanton conduct are charged against them. Construing the petition on demurrer most strongly against the defendant in error, we do not think it sufficiently alleges facts showing that the directions for the routing of the bus were given individually rather than officially. No reason is alleged why the officials as such did not have the authority to route the bus as it is alleged to have been routed. The route is not alleged to be inherently dangerous. The allegations that the plaintiffs in error gave the instructions as individuals is a mere conclusion of the pleader, and must yield to the specific allegations that they were given individually for the only reason assigned in the petition, to wit, that the instructions were “not sanctioned'by any official function, and that no meeting, resolution, or official function attended such instruction.” The petition alleged that the driver was officially employed, and shows no good reason why the action was not official. The presumption, under the allegations of the petition, would therefore be that the action was official. Such direction could be given officially without a meeting, or resolution, or official “function.” It follows that there is no liability shown against the plaintiffs in error under the allegations, there being no allegation of wilful and wanton conduct on their parts. Roberts v. Baker, 57 Ga. App. 733 (196 S. E. 104). Neither count sets forth a cause of action, and the court erred in overruling the general demurrer to the petition.

Judgment reversed.

Stephens, P. J., and Sutton, J., concur.