Opinion
31378.
DECIDED FEBRUARY 8, 1947. REHEARING DENIED MARCH 11, 1947.
Damages; from Fulton Superior Court — Judge Pomeroy. May 21, 1946. (Application to Supreme Court for certiorari.)
Dunaway, Riley Howard, for plaintiffs in error.
Hewlett Dennis, T. F. Bowden, Miller Head, Andrews Nall, contra.
This is a companion case to that of de Golian et al. v. Faulkner, ante, and the decision here, as to the overruling of the general demurrer to the petition, is controlled by the decision rendered in the companion case. However, in the companion case the only assignment of error insisted upon was based merely upon the overruling of the general demurrer to the petition, while in the instant case error was assigned upon the overruling both of the general demurrer and of certain special demurrers to the petition; but, in the brief of counsel for the plaintiff in error, the only assignment of error insisted upon, in addition to those upon the rulings on the general demurrer, was that upon the overruling of one special demurrer. That ground is set forth in paragraph 8 of the demurrer and reads as follows: "Paragraph 18 of the petition is vague, indefinite, and a conclusion of the pleader, in that the various expenses referred to are not itemized and set out with any detail, which would put these defendants on notice of just exactly what expenses plaintiff is claiming." And counsel for the defendants in error state in their brief that "we concede that the special demurrer contained in paragraph 8 of the demurrer should have been sustained."
The overruling of the general demurrer to the petition was not error, but the court erred in overruling the special demurrer attacking paragraph 18 of the petition. However, if counsel for the plaintiff will strike that paragraph from the petition, or amend it to cure the defects therein pointed out by the special demurrer, the judgment will be affirmed; otherwise, it will stand reversed.
Judgment affirmed on condition. MacIntyre and Gardner, JJ., concur.