Midland Properties Co. v. Farmer

110 S.E.2d 100, 100 Ga. App. 8, 1959 Ga. App. LEXIS 528
CourtCourt of Appeals of Georgia
DecidedJune 24, 1959
Docket37660, 37661, 37662, 37663
StatusPublished
Cited by12 cases

This text of 110 S.E.2d 100 (Midland Properties Co. v. Farmer) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Midland Properties Co. v. Farmer, 110 S.E.2d 100, 100 Ga. App. 8, 1959 Ga. App. LEXIS 528 (Ga. Ct. App. 1959).

Opinions

Nichols, Judge.

1. The Savannah Electric & Power Company demurred specially to paragraphs 7 and 8 of the plaintiff’s petition because the exhibits therein referred to themselves referred to a plat being attached and as being on file in the records of the Clerk of the Superior Court of Chatham County, Georgia, which plat was not attached to the exhibit. The basis of this demurrer is that without the plat being attached the location of the place where the injuries occurred could not be determined. The description contained in the exhibits did not describe the property by metes and bounds but only as to what lands bounded the property covered by the easements. While such exhibits did not expressly locate the scene where the plaintiff was injured (See McDilda v. Lankford, 213 Ga. 773 (2) 102 S. E. 2d 41), when such exhibits are considered in connection with the remainder of the allegations of the petition, the area was sufficiently described so as to place this defendant on notice as to the location where the injuries were sustained without the plats being attached to the exhibits, and the demurrers were properly overruled.

[22]*222. All the defendants demurred to the allegations contained in paragraph 11 because it was not alleged whether the, contract between the plaintiff’s employer and the United States of America was oral or written.

It is too well settled to- require citation of authority that when a cause of action is based on a contract it is necessary for the plaintiff to' either plead the terms of the contract or to attach such contract as an exhibit to- the petition. In the present case the plaintiff’s cause of action is not based upon the contract between the plaintiff’s employer and the United States of America, but on the contrary is based, as to the Savannah Electric & Power Company, on the maintenance of a “mantrap,” and as to the other defendants upon the obligations arising under the spoil disposal easements, either as principal or agent. The terms of the contract, other than the terms actually pleaded could in no wise have any effect on the defendants for they were not parties to such contract. Accordingly, these grounds of demurrer are without merit, since the terms of the contract necessary to the case sub judice were pleaded.

3. Midland Properties Company demurred specially to the allegations of paragraphs 12 and 13 because of the reference therein to its parent corporation, Savannah & Atlanta Railway Company, since each corporation is a separate legal entity.

Paragraph 12 of the petition, in its final analysis, alleged that the parent corporation acted as the agent of the subsidiary corporation, and that all of the acts, in connection with the present action, of the subsidiary corporation were done by the parent corporation for the benefit of both corporations. Accordingly, these grounds of demurrer were without merit.

4. The special demurrers filed by Midland Properties Company to paragraphs 16, 17, and 18 which attack such allegations as being conclusions of the pleader, irrelevant and immaterial to the petition, are without merit in view of all the allegations of the petition. The acts leading up to' the plaintiff’s injuries are not immaterial, nor are the averments of ultimate fact conclusions of the pleader. “It is evident that the effect of the special demurrer here under consideration was to require the plaintiff in error to plead his evidence. This he is not required [23]*23to do. ‘Good pleading requires only that the plaintiff plainly and concisely state the material ultimate facts upon which she depends for a recovery. As a general rule, the evidentiary facts upon which the plaintiff relies to prove the, ultimate facts need not and should not be set forth in the pleadings.’ Lefkoff v. Sicro, 189 Ga. 554 (10) (6 S. E. 2d 687, 133 A. L. R. 738).” Tanner v. National Cas. Co., 214 Ga. 705 (1b) (107 S. E. 2d 182). The allegations here complained of allege ultimate facts and not conclusions of the pleader.

5. Savannah Electric & Power Company demurred specially to paragraph 25 of the petition because the allegations therein that such defendant was grossly negligent in installing the high voltage electric line so that it hung within 15 feet of the ground was a conclusion.

In Welch v. City of Camilla, 86 Ga. App. 609, 617 (72 S. E. 2d 83), it was said: “Suppose the defendant, or any power company, should string such wires [high voltage electric wires] 10 feet above the level of the ground, would we not say at once that it should have anticipated that in the ordinary course of human events, considering the various objects carried by people, the various vehicles, etc., which would come within the ambit of the wires, that someone might be brought into contact with such wires strung at such a height.” In Central of Ga. Ry. Co. v. Pelfry, 11 Ga. App. 119, 123 (74 S. E. 854), it was said: “One may be convicted of murder even where he did not intend to kill, and even where he had no malice against the person killed. He may recklessly shoot into a crowd, intending merely to frighten, and kill a man whom he has never seen and against whom he has no ill will; but the homicide would be murder. And so, if an engineer should see one lying on the track in an apparently helpless condition, he would have no right to assume that the person would leave the track in time to save himself. To run him down under such circumstances would be such gross negligence and recklessness as would amount in law to wantonness.” Since the questions of negligence and the degree of negligence are questions for the jury’s determination except in palpably clear cases, under all the allegations of the petition this' court cannot say as a matter of law that [24]*24placing the wire so that it was less than 15 feet above the level of the ground was not gross negligence and that the allegation was a bare conclusion. Accordingly, the trial court did not err in overruling this ground of demurrer. See also Lassiter v. Poss, 85 Ga. App. 785, 787 (70 S. E. 2d 411).

6. Savannah & Atlanta Railway Company, Midland Properties Company and Savannah Electric & Power Company all demurred specially to- paragraph 26 of the petition. These demurrers were based on the premise that it was not alleged whether the two roads were public or private, when the area was used as pasture, why the area was a likely place for hunters and why it was a likely place to be traversed by pedestrians. “The office of the special demurrer in this State is to- point out defects in the petition as to matters of form and to point out irrelevant and ambiguous matter, and to require the pleader to make his pleading more certain and as to a bill, petition or declaration to require the plaintiff to- set out his alleged cause of action and grievance against the defendant with such definiteness, clarity and particularity as to enable the defendant to know the exact nature of the complaint against it and to prepare itself to defend against the charges made. A petition does not have to go- into minute detail and the pleader is not required to set out his evidence in the petition. Reasonable definiteness and certainty is all that should be required, even though the attack is made by special demurrer, and other demands by special demurrer should not be encouraged. Southern Ry. Co. v. Lunsford, 50 Ga. App. 829, 833 (3) (179 S. E. 571); Charleston &c. Ry. Co. v. Attaway, 7 Ga. App.

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Midland Properties Co. v. Farmer
110 S.E.2d 100 (Court of Appeals of Georgia, 1959)

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Bluebook (online)
110 S.E.2d 100, 100 Ga. App. 8, 1959 Ga. App. LEXIS 528, Counsel Stack Legal Research, https://law.counselstack.com/opinion/midland-properties-co-v-farmer-gactapp-1959.