Scott v. Central of Georgia Railway Co.

88 S.E. 995, 18 Ga. App. 159, 1916 Ga. App. LEXIS 193

• Court: Court of Appeals of Georgia
• Decided: May 24, 1916
• Docket: 6981
• Status: Published

Opinion

Bboyles, J.

The court erred iu disallowing the proffered amendment to the plaintiff’s petition, and in sustaining the general and special demurrers and dismissing the petition.

(o) With the addition of the disallowed amendment, the petition set forth a cause of action, and was riot subject to general demurrer.

(Z>) The special demurrers should not have been sustained, as they did not specify or point out the alleged defects in the petition. A special demurrer goes to the structure merely, and it must distinctly and particularly specify wherein the defect lies. The party specially demurring-“must lay, as it were, his finger on the very point,” otherwise his demurrer will be overruled. Martin v. Bartow Iron Works, 35 Ga. 319, 323. Judgment reversed.

The amendment which the court refused to allow was as follows:

“1. Plaintiff is the widowed mother of said deceased and at the time of said homicide was in ill health and unable to labor or earn a living, she was possessed of no property, and was entirely dependent upon the labor of said deceased for her support and maintenance. 2. Said defendant wilfully and wantonly ran its train over and killed said deceased after they knew he was upon their tracks.”

The defendant demurred to the petition generally, and to specified parts, which it moved to strike, without stating why it demurred to these parts.

Frank G. Babb, for plaintiff. Saffold & Jordan, Dixon & Dixon, for defendant.