Savannah, Florida, & Western Railway Co. v. Pollard

42 S.E. 525, 116 Ga. 297, 1902 Ga. LEXIS 87

• Court: Supreme Court of Georgia
• Decided: August 9, 1902
• Status: Published

Opinion

Little, J.

1. The fact that the petition in an action against a railway company affirmatively alleged negligence on the part of the defendant does not estop the plaintiff from so amending a second petition, brought in renewal of that action within six months of its dismissal, as to make the same allege that in point of fact the plaintiff did not know that such negligence existed until after the bringing of the first action, and that because of ignorance of such negligence the plaintiff had been fraudulently induced by an agent of the company to enter into an accord and satisfaction with it.

2. A petition thus amended, and in other respects good, is not demurrable because of the plaintiff’s apparent want of good faith in alleging a fact without knowledge of its existence ; nor as setting forth a new cause of action ; nor as being barred by the statute of limitations, the first action having been brought in due time.

3. The petition in the present case, as amended, is not open to demurrer on the ground that the facts alleged showed want of diligence on the part of the plaintiff in discovering the alleged fraud by which she was induced to enter into the accord and satisfaction ; nor did the plaintiff’s allegations show undue delay in offering to rescind. Nor are any of the special grounds of demurrer to the petition as amended, not covered by the rulings announced above, meritorious.

Judgment affirmed.

All the Justices concurring, except Lewis, J., absent.

. Case. Before Judge Bennet. Ware superior court. September 10,1901.

W. E. Kay and S. W. Hitch, for plaintiff in error. Toomer & Reynolds and Leon A. Wilson, contra.