Salter v. Nugent

Court of Appeals of Georgia

Salter v. Nugent

177 S.E. 513, 50 Ga. App. 187, 1934 Ga. App. LEXIS 687

CourtCourt of Appeals of Georgia

DecidedNovember 24, 1934

Docket24157

StatusPublished

Cited by4 cases

This text of 177 S.E. 513 (Salter v. Nugent) 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

Salter v. Nugent, 177 S.E. 513, 50 Ga. App. 187, 1934 Ga. App. LEXIS 687 (Ga. Ct. App. 1934).

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Opinion

Broyles, C. J.

1. “Except in case of railroad companies, the master is not liable to one servant for injuries arising from the negligence or misconduct of other servants about the same business.” Civil Code (1910), § 3129; Brush Electric Co. v. Wells, 110 Ga. 192 (35 S. E. 365), and cases cited.

[188]*188Decided November 24, 1934. TJlmer & Dowell, for plaintiff. Adams, Adams & Douglas, for defendants.

2. There must be enough in a petition to amend by; and where it sets forth no cause of action, it can not be amended. A new and different ease from that made in the original petition can not be added by amendment. Jones v. Robinson, 172 Ga. 746 (3) (158 S. E. 752) ; Davis v. Muscogee Mfg. Co., 106 Ga. 126, 129 (32 S. E. 30); Kennemer v. W. & A. Railroad, 42 Ga. App. 266 (3) (155 S. E. 771).

3. The original petition in the instant case, properly construed (most strongly against the plaintiff), shows that the personal injuries sued for resulted from the negligence of a fellow servant of the plaintiff. While the petition contains some language tending to show otherwise, such language is clearly a conclusion of the pleader which is not supported by the facts set forth. The original petition set forth no cause of action whatever, and could not “by amendment be converted into a cause of action.” Davis v. Muscogee Mfg. Co., supra.

4. Under the foregoing rulings, the court did not err in disallowing the amendment to the original petition, or in dismissing the case on general demurrer.

Judgment affirmed.

MacIntyre and Guerry, JJ., concur.

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Broyles, C. J.

1. “Except in case of railroad companies, the master is not liable to one servant for injuries arising from the negligence or misconduct of other servants about the same business.” Civil Code (1910), § 3129; Brush Electric Co. v. Wells, 110 Ga. 192 (35 S. E. 365), and cases cited.

[188]*188Decided November 24, 1934. TJlmer & Dowell, for plaintiff. Adams, Adams & Douglas, for defendants.

2. There must be enough in a petition to amend by; and where it sets forth no cause of action, it can not be amended. A new and different ease from that made in the original petition can not be added by amendment. Jones v. Robinson, 172 Ga. 746 (3) (158 S. E. 752) ; Davis v. Muscogee Mfg. Co., 106 Ga. 126, 129 (32 S. E. 30); Kennemer v. W. & A. Railroad, 42 Ga. App. 266 (3) (155 S. E. 771).

3. The original petition in the instant case, properly construed (most strongly against the plaintiff), shows that the personal injuries sued for resulted from the negligence of a fellow servant of the plaintiff. While the petition contains some language tending to show otherwise, such language is clearly a conclusion of the pleader which is not supported by the facts set forth. The original petition set forth no cause of action whatever, and could not “by amendment be converted into a cause of action.” Davis v. Muscogee Mfg. Co., supra.

4. Under the foregoing rulings, the court did not err in disallowing the amendment to the original petition, or in dismissing the case on general demurrer.

Judgment affirmed.

MacIntyre and Guerry, JJ., concur.

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177 S.E. 513, 50 Ga. App. 187, 1934 Ga. App. LEXIS 687, Counsel Stack Legal Research, https://law.counselstack.com/opinion/salter-v-nugent-gactapp-1934.

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