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SMITH v. SOUTHEASTERN COURTS, INC., et al. (two cases).
34911.
34912.
Action for damages. Before Judge Heery. Savannah City Court. August 18, 1953.
QUILLIAN, J.
The trial court did not err in sustaining the defendant's plea of res judicata in the present case, the petition being identical in language with one to which a general demurrer was sustained in a previous case in the same court between the same parties and concerning the same transaction.
Mrs. Ruth C. Smith on August 18, 1951, filed a suit in the City Court of Savannah against Southeastern Courts, Inc., and F. C. Soper. She alleged that the defendants operated a tourist camp in Chatham County; that her son who was unmarried, and who contributed to her support, was a guest of the defendants, and by them assigned to one of their cabins to spend the night of November 27, 1950. She fully set out the duty resting upon the defendants to furnish her son with a safe place of lodging; and alleged that they failed to perform this duty in that they furnished to her son a defective gas stove to heat the cabin occupied by him. She related that on account of the defective condition of the stove it consumed an insufficient quantity of oxygen, thereby causing improper combustion of the gas and rendering the air poisonous, resulting in her son's death. She further alleged that the death of her son was caused by the joint negligence of the defendants.
The court sustained a special demurrer to the petition as amended, it having been amended to allege more specifically the defective condition of the stove, and to relate more particularly the negligence chargeable to the defendants. The special demurrer simply called for more clarity in showing in what manner the defendants were jointly negligent. The court ordered the plaintiff to amend the petition within a given length of time to make it appear more distinctly wherein the defendants were jointly liable. The plaintiff failed to offer an amendment within the time fixed by the order.
The court then sustained a general demurrer, the ground of which was that the petition set forth no cause of action. This demurrer was sustained September 23, 1952. The plaintiff did not except to the judgment, but on November 24, 1952, brought a suit in the same court identical in every particular with the suit dismissed on general demurrer.
The defendants filed a plea of res judicata to the second suit, alleging that the plaintiff's right had been finally adjudicated by the judgment sustaining the general demurrer to the first suit filed by her. The plea was sustained, and the plaintiff excepted.
Plaintiff in error in a well prepared brief presents the contention that the general demurrer sustained to the petition filed on August 18, 1951, did not adjudicate that she did not have a right of action against the defendants, but simply decided that her petition did not show "why or in what manner their joint and concurrent negligence" caused the conditions that resulted in the tragic death of her son. She says that the sustaining of the general demurrer to her petition did not affect her right to bring a new suit on the very same cause of action as that set forth in the petition to which a judgment was sustained.
There is authority for the position that, where a petition is dismissed on general demurrer, the right of the plaintiff to maintain the action is not always adjudicated.
In cases where the nature of the demurrer is to point out that the suit cannot be maintained on the equity side of the court, or is brought by a trustee before being clothed with the authority of his trustee, or where for other reasons the action is not maintainable at the time or in the court in which it is brought, the demurrer sustained does not challenge the right of the plaintiff to bring the action at any time or in any court.
In the instant case, it appears that, in a suit between the same parties, in the same court, concerning the same cause of action, a petition identical in language to that in the instant case was dismissed on general demurrer, and that the ground of the general demurrer was that the petition set forth no cause of action. The judgment sustaining the demurrer in the previous case was not excepted to. That appearing, the court properly sustained a plea of res judicata. Byrd v. Goodman, 195 Ga. 621 (2) (25 S. E. 2d 34).
But, if this demurrer had been sustained on a merely technical ground, pointing out that it could not be maintained on account of a mere formal defect appearing in it, this court would have been without power to reverse the judgment of the trial judge on the plea of res judicata, for the reason that the suit in the present case is identical in language with the suit to which the demurrer was sustained.
The trial court did not err in sustaining the plea of res judicata and in dismissing the petition.
Judgment affirmed on both bills of exceptions. Felton, C. J., and Nichols, J., concur.
Myrick & Myrick, contra.
Gilbert E. Johnson, Oscar C. Burnett, James E. McAleer, Jr., for plaintiff in error.
DECIDED FEBRUARY 13, 1954 -- REHEARING DENIED MUCH 17, 1954.
Saturday May 23 03:50 EDT


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