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Lawskills.com Georgia Caselaw
CANNON v. HOOD CONSTRUCTION CO., INC.
35383.
Action for damages. Before Judge McClure. Walker Superior Court. July 16, 1954.
GARDNER, P. J.
The court erred in refusing to allow the amendment of the plaintiff to her petition. The court erred in sustaining the demurrer to the original petition after erroneously disallowing the amendment. The petition as amended set forth a cause of action.
Mrs. A. B. Cannon (plaintiff in error here), hereinafter called the plaintiff, filed suit in the Superior Court of Walker County against Hood Construction Company, Inc. (hereinafter called the defendant). The plaintiff alleged that the defendant had injured her in the sum of $50,000, in that on or about 9:30 p.m. on August 31, 1951, she was walking along Highway 41 about 1 /2 miles south of Calhoun, Georgia, when without warning she dropped through a hole in the pavement into an open manhole or water trap, which was about 3 feet in diameter and 5 feet deep; that the defendant on the same day was working on the highway, had removed the cover which was normally on the manhole, and had failed to replace it in its normal and proper position; that the defendant had failed to place any barriers or torches or warning devices of any kind around the manhole to warn the plaintiff; that, as a result of her falling in the hole, she had suffered severe compression of her spine, back and legs, and a chronic sprain of her low neck and uppermost thoracic spine and a sprain of the lumbo-sacral joints; that she was unable to stand up for more than very short periods of time, and that she suffers from numbness along her entire right side; that she has had to pay large medical bills, has been under the treatment of a physician, and has been unable to labor; that the defendant's negligence was the sole and proximate cause of the plaintiff's injuries; and that the defendant was negligent in failing to replace the manhole cover, in failing to erect barriers or place torches to warn the plaintiff of the danger, and in failing to exercise due care for the protection of the plaintiff in removing the cover from the manhole and leaving it uncovered so as to be a man trap for the plaintiff, and in leaving the uncovered manhole unprotected by barriers on the work day of August 31, 1951, and thereby not giving the plaintiff any warning of the deadly pitfall.
To this petition the defendant filed a general demurrer, on the ground that the petition failed to set forth a cause of action, and also demurred to paragraph 6 of the petition, which alleged "That defendant, Hood Construction Company, Inc., through its agents and employees, was on August 31, 1951, engaged in work of a type unknown to your petitioner but well known to defendant on, about or under said highway." The defendant also moved to strike the same upon the following grounds: "(a) That it is not alleged who the defendant was engaged by and what its duties were in connection with any work about or under said highway. (b) That it is not alleged whether defendant was engaged in work on manholes or water traps and if so, what its duties and engagement consisted of. (c) That the allegations violate section 81-101 of the Code of Georgia, in that the plaintiff fails to plainly, fully, and distinctly set forth the plaintiff's cause of action and fails to property identify the defendant as being a party legally responsible for said alleged injuries."
The defendant also demurred to that language of the petition alleging negligence upon the part of the defendant, in that no duty was alleged upon the part of the defendant to replace the cover on said manhole or water trap; that it was not alleged when the cover to said manhole or water trap was removed; that it was not alleged when the close of the work day occurred on August 31, 1951; that no legal responsibility was alleged upon the part of the defendant or its employees to replace a cover on said manhole or water trap; that no duty was alleged upon the defendant to place barriers, torches, or other warning devices of any kind near or around said manhole or water trap; that it was nowhere alleged in said petition what duty was placed upon the defendant toward the plaintiff or others using said highway; and that the petition failed to allege any duty upon the part of the defendant to cover said manhole or water trap and failed to allege any reason for the defendant's giving notice to anyone who might be using said highway of a deadly pitfall on said highway.
The plaintiff filed an amendment to her petition, in which she alleged that the manhole was left unprotected without contractual authority, and that the same was done contrary to contractual obligations; that the defendant had authority to replace the manhole cover and had a duty to do so to protect the general public and plaintiff, and the defendant had control of the highway and control of the opening and closing of the manhole involved and had a duty both to the public and from a contractual standpoint to place lights, flags, and other signs or barriers on the highway; and that the defendant had entered into a contract with the State Highway Board which relieves the board from such warnings.
The plaintiff further alleged that the defendant had contracted with the State to perform the work required to be furnished in strict conformity with the provisions of the contract involved and in conformity with the plans and specifications approved by the engineer; that said plans and specifications provided in part that the contractor should provide, erect, paint, and maintain all necessary barricades and provide suitable and sufficient red lights, reflectors, torches, etc., as danger signals; and that the contractor, which was the defendant in the court below, shall hold harmless the State for any injuries.
The amendment was tendered to the trial judge, who entered the following order: "The above and foregoing read and considered. The same is ordered filed as part of the record. Said amendment is hereby disallowed. This 16th day of July, 1954." After refusing to allow the amendment, but permitting the same to be filed, the court then entered the following order on the general demurrer: "The within general demurrer coming on for hearing, the same is hereby sustained and the petition dismissed. This July 16, 1954."
The above statements regarding the petition and demurrer are regarded by counsel for all parties as substantially correct and as setting forth such parts of the petition and demurrer as are necessary to a discussion of the issue before this court.
1. Code 105-101 provides as follows: "A tort is the unlawful violation of a private legal right, other than a mere breach of contract, express or implied; or, it may be the violation of a public duty, by reason of which some special damage accrues to the individual." Code 105-103 provides: "When the law requires one to do an act for the benefit of another, or to forbear the doing of that which may injure another, though no action be given in express terms, upon the accrual of damage the injured party may recover." Code 105-106 provides: "No privity is necessary to support an action for a tort; but if the tort results from the violation of a duty, itself the consequence of a contract, the right of action is confined to the parties and privies to that contract, except in cases where the party would have had a right of action for the injury done, independently of the contract."
The allegations of the original petition, when measured by the provisions of the principles of law as announced in the above Code sections, set out a plaintiff and a defendant and a specific cause of complaint sufficiently to be amendable. If the petition in this case, as originally filed, was defective in any wise, it was only in that it omitted to allege sufficiently facts essential to raise the duty or obligation in the cause of action. This court held in Dunn v. Freeman, 24 Ga. App. 504 (1) (101 S. E. 393) as follows: "The original petition showed a plaintiff and a defendant, and set out sufficient allegations to indicate and specify some particular fact or transaction as a cause of action. It was defective, if at all, only in that it omitted to sufficiently allege facts essential to raise the duty or obligation involved in the cause of action which the plaintiff evidently originally intended to declare upon, and was therefore amendable by supplying the omitted facts. The trial court erred, therefore, in holding that there was not enough in the original petition to amend by, and in refusing to allow the proffered amendment. Civil Code (1910), 5681, 5682; Ellison v. Georgia R. Co., 87 Ga. 691 (13 S. E. 809); Davis v. Muscogee Mfg. Co., 106 Ga. 126 (32 S. E. 30)." This court held in King v. Seaboard Airline Ry. Co., 1 Ga. App. 88 (4) (58 S. E. 252) as follows: "An amendment to the petition, which merely varies the acts of negligence, but which does not complain of any different wrong or injury from that set forth in the original petition, is not subject to the objection that it sets forth a new cause of action." See also Savannah, F. & W. R. Co. v. Pollard, 116 Ga. 297 (42 S. E. 525), Brackin v. City of Bainbridge, 119 Ga. 603 (46 S. E. 828), and Shiver v. Tift, 143 Ga. 791 (85 S. E. 1031, L. R. A. 1918A, 622).
The court erred in refusing to allow the amendment of the plaintiff to her petition. The court erred in sustaining the demurrer to the original petition after erroneously disallowing the amendment. The petition as amended set forth a cause of action.
Judgment reversed. Townsend and Carlisle, JJ., concur.
G. W. Langford, contra.
Smith, Field, Doremus & Ringel, Frank M. Gleason, for plaintiff in error.
DECIDED OCTOBER 26, 1954.
Saturday May 23 03:27 EDT


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