94 S.E.2d 31
36236.Court of Appeals of Georgia.
DECIDED JULY 16, 1956.
The court erred in overruling the special demurrers to the petition as shown in the opinion.
DECIDED JULY 16, 1956.
Tort; disregard for child’s safety. Before Judge Guess. DeKalb Superior Court. April 17, 1956.
Douglas Christie, by next friend, sued Ralph E. Wilson and M. C. Honea for damages for personal injuries. The petition alleged the following facts relevant to the consideration of the questions raised: “3. Defendant Ralph E. Wilson is a contractor engaged in the business of building foundations, walls and rock work; and on August 20, 1953, said defendant was engaged as an
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independent contractor for Mr. S. J. Schmidt to excavate and tear down a small three-foot retaining wall on the premises at 394 Glen Circle, Decatur, Georgia, and to regrade said premises. 4. Defendant M. C. Honea was, on said date, employed by defendant Wilson to landscape around the certain wall and driveway located on the premises; at all times herein mentioned, defendant Honea was the agent and servant of defendant Wilson, acting under his direction, supervision and control. 5. At the time defendant Honea started to grade landscape, a group of small children, including the plaintiff, became interested in and attracted to the said defendant’s Oliver Loader type tractor; and came to the said premises to watch the grading operations. Both defendants knew the plaintiff was on the premises and watching the grading operations. 6. In spite of the defendant’s knowledge of the plaintiff’s presence on the property, and in spite of the defendant’s knowledge of the plaintiff’s curiosity and the attraction to the Oliver Loader type tractor, defendant Honea proceeded to grade the said landscape while the plaintiff was on the premises to be graded. 7. Just prior to the time plaintiff was injured, he was standing approximately four feet from the retaining wall, which defendant Honea had been employed to tear down; and defendant Honea, knowing of the plaintiff’s presence and with utter disregard for the plaintiff’s safety, drove his tractor toward said retaining wall and pushed it over and down on the plaintiff’s foot, causing the painful and permanent injuries hereinafter alleged. 8. One of the rocks from the falling wall crushed the plaintiff’s foot and caused a severe laceration of the medial aspect of the right foot, a compound fracture of the right great toe, and a compound fracture of the proximal phalanges of the four remaining toes and the fourth metatarsal bone, producing the conditions hereinafter alleged. . . 13. Plaintiff shows that all the foregoing damage and injury was directly and proximately caused by the defendants’ utter disregard for the plaintiff’s safety in: (a) Toppling said retaining wall with the Oliver type tractor at a time and place when the defendant knew the plaintiff was standing in a place of danger. (b) In failing to stop said tractor in time to prevent the wall from toppling over on the plaintiff’s foot. (c) In failing to warn the plaintiff that he was toppling the wall over.”
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The petition was amended so as to show that the action was brought by the minor, and the general and special demurrers originally filed were renewed to the petition as amended, the demurrers being as follows: “1. Said petition fails to set out a cause of action against them or against either of them and should be dismissed. 2. Defendants demur to the allegations of paragraph five (5) of said petition as being too vague, indefinite, and uncertain to put defendants on notice of what they are called upon to answer for the following reasons: (a) It is not alleged at what time the defendant Honea started operations to grade or landscape. (b) It is not alleged at what time of day or night the plaintiff was injured. (c) It is not alleged what children were in the group referred to, other than the plaintiff. (d) It is not alleged whose children (other than plaintiff) were in the group, not is it alleged from whence they came, what relationship they bore to the parties in this case and it does not appear what their legal status was, with respect to the premises referred to. (e) It does not appear from said paragraph nor from any other part of the petition, what part of the premises in question said children, including the plaintiff, occupied during the time they were upon the premises while operations of defendants were in progress. (f) It does not appear from said paragraph, nor from any other part of the petition, where or how long the plaintiff remained upon the premises in question. (g) It does not appear on what date the plaintiff was injured. 3. Defendants demur specially to said petition as a whole as being too indefinite and uncertain to put defendants upon notice of what they are called upon to answer for the following reasons: (a) It does not appear at what time defendants’ operations began upon said premises, either as to hour or date. (b) It does not appear upon what date plaintiff was injured, nor does it appear at what hour he was injured. (c) It does not appear what part of the premises the plaintiff occupied during the time he was upon the premises in question. (d) It does not appear what plaintiff’s legal status was with respect to the premises in question. That is, it does not appear whether he was an invitee, a trespasser, or just what his legal relation was — except by inference. (e) It does not appear from said petition how long the plaintiff occupied a position approximately four feet from the wall mentioned, nor does
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it appear from whence he came, before taking the position four feet from the wall. (f) It does not appear whether plaintiff was on the same side of the wall as the defendant Honea, at the time plaintiff was injured. And it does not appear that the plaintiff was on the same side of the wall, when he was injured, as the machine alleged to have been operated at said time by defendant Honea. And plaintiff should be required to specify such details. (g) It is not alleged whether the plaintiff was in a stationary position when he was injured, or whether he was in motion, or sitting. (h) The length of the wall referred to is not stated, and it is not stated at what point along said wall the plaintiff was stationed at the time he was injured. (i) It does not appear from said petition just where along said wall, or on said premises, the defendant Honea was stationed at the time plaintiff was injured. (j) It does not appear from said petition what part of the wall in question was hit by the machine referred to — whether it was a part of the wall immediately opposite the plaintiff, or some other part, and if some other part, at what distance from the plaintiff. (k) It is not alleged how or in what manner either defendant knew of the presence of the plaintiff at the time he was injured. 4. Defendants demur to the allegations of paragraph seven of said petition, wherein it is alleged `— and defendant Honea, knowing of the plaintiff’s presence and with utter disregard for the plaintiff’s safety, drove his tractor toward said retaining wall and pushed it over and down on the plaintiff’s foot,’ as being a mere conclusion of the pleader, especially that part which alleges that said act was done with utter disregard for the plaintiff’s safety, as being a mere conclusion of the pleader, there being no allegations therein or elsewhere in the petition justifying the charge or the inference that said act was done with utter disregard of the plaintiff’s safety. 5. Defendants demur to the allegations of paragraph thirteen of said petition, and move to strike the same as being a mere conclusion of the pleader, there being no well pleaded facts in the petition which show that the defendants or either of them was negligent in doing any act charged with respect to toppling the retaining wall with said tractor; and because there are no well pleaded facts to show that defendants or either of them had an opportunity to stop the tractor after discovering the presence of the plaintiff; and there is no
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well pleaded fact going to show that the defendants failed to warn the plaintiff, or that they had an opportunity to know that the plaintiff was in a place of danger or had an opportunity to warn him after discovering that he was in a place of danger.”
The court overruled the renewed general and special demurrers and the defendants except to that ruling.
Carl T. Hudgins, for plaintiff in error.
Carter, Latimer Savell, contra.
FELTON, C. J.
1. Construed against the plaintiff, the action is one for wilful and wanton misconduct. It follows that special demurrer numbered 2 (d) is without merit. In order that it might appear from the petition whether certain allegations were supported by additional allegations of fact and in order that the defendants might have sufficient information to enable them to intelligently defend the charges against them, the following special demurrers should have been sustained, to wit: special demurrers 2(b), 2(c), 2(e), 2(f), 2(g), 3(b), 3(c), 3(e), 3(f), 3(g), 3(h), 3(i), 3(j) and 4 and 5. The facts called for by these demurrers which are within the knowledge of the plaintiff should be alleged or reasons given why they cannot be set forth. The information called for by these demurrers could prove very vital and material to the question of whether or not the defendants were negligent under the circumstances and if negligent, to what degree. The defendants are entitled to have the information called for for the above reason and to enable them to prepare their defenses.
The petition alleged a good cause of action as against the general demurrer standing alone.
The court did not err in overruling the general demurrer. The court erred in overruling the designated special demurrers. The assignments of error on the overruling of the other special demurrers are without merit.
Judgment affirmed in part and reversed in part. Quillian and Nichols, JJ., concur.
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