Thigpen v. Executive Committee

152 S.E.2d 920, 114 Ga. App. 839, 1966 Ga. App. LEXIS 932

• Court: Court of Appeals of Georgia
• Decided: December 1, 1966
• Docket: 42157
• Status: Published

Opinions

Felton, Chief Judge.

The enumeration of error is as follows: “The trial court erred in sustaining the defendant’s general demurrer to the plaintiff’s petition and the defendant’s general demurrer to plaintiff’s petition as amended.” The enumeration of error is sufficient to raise the questions whether the original petition set forth a cause of action and whether the amended petition set forth a cause of action whether error is specifically enumerated or not on the alleged error of the court’s requiring an amendment. If the original petition set forth a cause of action the case should be reversed; if the amended petition set forth a cause of action the case should be reversed. If the latter is the case this court is not required to go further and hold that the original petition was subject to a general demurrer. In 1966 Code § 81-1001, as amended several times, was again amended by the addition of a provision, as follows: “Either party who amends or attempts to amend his petition or other pleadings in response to an order or other ruling of the court shall not be held to have waived his objection to such order or ruling, but may thereafter take exception thereto as in other cases.” Ga. L. 1966, p. 452. The principal purpose of this amendment was to rid the law of a defect which has been in existence beyond the lifetime of any judges now sitting, a law which is regarded by practically a unanimous bar as supertechnical, unjust and which required an attorney to jeopardize his clients’ right by having sometimes to virtually guess what course he should follow—amend or not amend. If he elected to amend and added nothing, he lost his client’s case even though his petition was good in the first instance. If he initially excepted to the order requiring the amendment and lost, he faced another prospect of appeal as to whether a later amendment sufficed to save his pleading. It was to eliminate these problems that the above amendment was passed. Its legal consequence is that the law of the case principle in such situations is no longer applicable when an amendment is filed to comply with an order of court. The amendment to the Code section deals with a procedural right and applies in this case as the amendment was enacted after the case was tried but before it was appealed. See City of Valdosta v. Singleton, 197 Ga. 194, 208 (28 SE2d 759); Fulton County v. Spratlin, 210 Ga. 447 (2) (80 SE2d 780); St. Paul Fire &c. Ins. Co. v. Postell, 113 Ga. App. 862, 864 (149 SE2d 864).

The same conclusion would be required even if the amendment had not been passed. As we interpret the judgment of the court, there was no disallowance of the amendment and no sustaining of the demurrer to the amendment. Although there is a recital in the order that “it being found that plaintiff’s amendment fails- to overcome the defendant’s grounds of general demurrer which were sustained . . . November 8, 1963,” the recital is simply a part of the order sustaining the general demurrer to the petition, as amended. The last order does not disallow or strike the amendment. The order allows the amendment to stand and then sustains the general demurrer to the petition as amended. In stating that the amendment fails to overcome the grounds of general demurrer the court does no more than to say that the petition as amended fails to set forth a cause of action. In this context we think that the rule in Folsom v. Howell, 94 Ga. 112 (21 SE 136) is to be applied (without the amendment), that is, the petition was opened to a fresh adjudication, which was made. Therefore we need deal only with the fresh adjudication.

Reduced to its essence, the petition alleges: (1) a duty on the part of the defendant to exercise ordinary care to provide for the plaintiff a safe place in which to work, (2) a breach of such duty by the defendant’s alleged negligence, which was the proximate cause of (3) the plaintiff’s contracting of the disease at the defendant’s hospital.

' Although the defendant employer was not an insurer of the safety of its employees (Connell v. Fisher Body Corp., 56 Ga. App. 203, 208 (192 SE 484); Carter v. Callaway, 87 Ga. App. 754, 760 (75 SE2d 187)), it had the duty to use reasonable care to protect them against dangers of the employment which might reasonably be expected to produce disease, and would be liable to the plaintiff employee for a disease contracted by her in the course of her employment, where such disease was brought about by the negligence of the employer. Connell v. Fisher Body Corp., supra; Middlebrooks v. Atlanta Metallic Casket Co., 63 Ga. App. 620 (11 SE2d 682); Martin v. Tubize-Chatillon Corp., 66 Ga. App. 481 (17 SE2d 915); Peerless Woolen Mills v. Pharr, 74 Ga. App. 459 (40 SE2d 106). Of course a servant assumes the ordinary risks of his employment (Code § 66-301), which are those incident to the business and do not imply the result of the master’s negligence (Emanuel v. Ga. & Fla. R. Co., 142 Ga. 543 (83 SE 230)), even if there be dangers attendant thereon. Self v. West, 82 Ga. App. 708 (1a) (62 SE2d 424). Under the so-called “assumption of skill” doctrine, however, whereunder the master’s technical or scientific knowledge of his business makes the knowledge implied to him superior to that implied against the servant as to matters in connection with the business, the master is under a duty to warn his servant of the dangers involved. Code § 66-301; Genesco, Inc. v. Greeson, 105 Ga. App. 798, 802 (125 SE2d 786) and cit.

Whether or not the risk of contracting this particular disease was an “ordinary” one which the plaintiff will be deemed to have assumed depends upon whether or not the plaintiff’s contraction of the disease was the result of the defendant’s negligence, which is the ultimate issue involved. The assumption of risk by a servant (as well as questions of negligence, diligence, etc.) is a question for the jury, and should not be decided by this court on demurrer except in plain and indisputable cases. Grant v. Royster Guano Co., 15 Ga. App. 758 (4) (84 SE 161).

It is urged that this court utilize the doctrine of judicial notice in ruling on the demurrer, which is authorized in proper cases. Lamar Elec. Membership Corp. v. Carroll, 89 Ga. App. 440, 458 (79 SE2d 832); North British &c. Ins. Co. v. Mercer, 211 Ga. 161 (84 SE2d 570) ; Genesco, Inc. v. Greeson, 105 Ga. App. 798, 800, supra. Even if we should take judicial notice of the difficulty of preventing the spread of this particular disease, however, we would have to go further and hold, as a a matter of law, that the plaintiff could have contracted the disease in spite of the defendant’s complete lack .of any negligence and its implementation of all known preventive measures in order to affirm the sustaining of the general demurrer to the petition, which we are not prepared to do. The mere fact that a case as pleaded may be difficult of proof can not be considered in ruling on a demurrer as the ground of denying the plaintiff his right of assuming the burden of proof where his petition states a good cause of action. The petition as amended alleged a cause of action sufficient as against the general demurrer, and the issues of negligence, diligence, assumption of risk, proximate cause, etc., raised should have been tried before a jury.

The court erred in its judgment sustaining the renewed general demurrer to the petition as amended.

Judgment reversed.

Bell, P. J., Frankum, Jordan, Hall, Eberhardt and Deen, JJ., concur. Pannell, J., dissents. Quillian, J., not participating.