Opinion
37908.
DECIDED OCTOBER 20, 1959.
Action for damages. DeKalb Superior Court. Before Judge Vaughn. July 15, 1959.
Hugh G. Head, Jr., for plaintiff in error.
Buchanan, Edenfield Sizemore, Nolan B. Harmon, contra.
1. Where the trial court overrules the general demurrers and sustains certain special demurrers to the petition and allows the plaintiff time within which to amend, and where the plaintiff fails to amend within the time allowed and before a final judgment is entered on the sufficiency of the pleadings, the original order sustaining the special demurrers is not subject to exception or review. Code § 81-1001, as amended by the act approved February 15, 1952 (Ga. L. 1952, pp. 243-245). However, where such original order was not in such form that it could be excepted to at the time entered, a final judgment sustaining the general demurrer and dismissing the petition which by its terms shows that it was entered in consequence of the original order will be treated as renewing the judgment sustaining the special demurrers, and where the substance of the ruling on the special demurrers is necessarily incorporated in the ruling on the general demurrer, the error thus incorporated in the final ruling will be subject to review. Accordingly, while the contention of the defendant in error in this case that the original order sustaining the special demurrers is not subject to exception or review is correct ( McCormick v. Johnson, 213 Ga. 544 (1), 100 S.E.2d 195; but see, Jackson v. Jackson, 214 Ga. 619, 621, 106 S.E.2d 783 ), the questions decided by the original order and necessarily involved in a consideration of the final judgment dismissing the petition will be passed on by this court, and if it appears from a consideration of those questions that the original petition was not subject to general demurrer, the plaintiff's election to stand on the original petition will not foreclose his right to an adjudication by this court as to the correctness of the trial court's decision on those questions.
2. A "demurrer being a critic, must itself be free from imperfection." Douglas, Augusta c. Ry. Co. v. Swindle, 2 Ga. App. 550 ( 59 S.E. 600). "This is particularly true of a special demurrer, as its office is to point out clearly and specifically the alleged imperfection in the pleading attacked by it. `It must lay its finger, as it were, upon the very point.'" Alford v. Davis, 21 Ga. App. 820 (4a) ( 95 S.E. 313). Accordingly, the 3rd, 4th and 5th grounds of special demurrer which attacked paragraphs 2 and 3 of the petition as being conclusions, and paragraph 4 as being immaterial and highly prejudicial to the defendant were, under the foregoing rules of law, insufficient as special demurrers. See Gay v. Healan, 88 Ga. App. 533, 537 (1) ( 77 S.E.2d 47). Since these paragraphs of the petition were not wholly insufficient they were not subject to general demurrer, and, accordingly, the trial court erred in entering the final order sustaining the 3rd, 4th and 5th grounds of demurrer.
3. Paragraph 6 of the demurrer attacked the allegations of paragraph 6 of the petition on the ground that the allegations were purely legal conclusions without alleging any facts upon which to base them. That this paragraph was not subject to special demurrer on that account, see Norman v. Norman, 99 Ga. App. 755, 759 (2) ( 109 S.E.2d 900).
4. The allegations in paragraphs 10 (b) and 10 (c) of the petition that the defendant was negligent in failing to warn the plaintiff that the dog would bite and in not having the dog inoculated, if true, and if shown by the evidence to have been the proximate cause of the plaintiff's injuries and damages, or some of them, was sufficient to authorize a recovery. Accordingly, the trial court erred in sustaining the 7th and 8th paragraphs of the demurrer attacking those allegations.
5. Unless the defendant can admit all that is alleged and still escape liability, a general demurrer to a petition should not be sustained. Hathcock v. Georgia Northern Ry. Co., 90 Ga. App. 533, 535 ( 83 S.E.2d 329). Questions of negligence, diligence, cause and proximate cause are ordinarily questions for a jury and should not be decided on general demurrer except in plain, palpable and indisputable cases. Fulcher v. Rowe, 78 Ga. App. 254 (1) ( 50 S.E.2d 378). Under the foregoing rules of law, the petition in the instant case stated a cause of action on behalf of the plaintiff and against the defendant on account of the defendant's negligence in permitting a known vicious dog to run at large resulting in the plaintiff being attacked and bitten by the dog, and the trial court erred in sustaining the general demurrers to the petition.
Judgment reversed. Gardner, P. J., and Townsend, J., concur.
DECIDED OCTOBER 20, 1959.
G. D. Gowan sued J. B. Andrews in the Superior Court of DeKalb County for damages for personal injuries. The original petition, omitting formal parts, alleged as follows:
"2. Defendant maintains at his home, 4179 Tilley Mill Road in DeKalb County, Georgia, a dog which the defendant, though knowing same to be a dangerous and vicious dog, allows to run and go at large upon the public streets and upon the property of other people.
"3. Said dog is a menace and a danger, which fact the defendant well knew for a sufficient time before said dog bit the plaintiff to have enabled defendant to keep said dog tied up, but defendant failed and neglected to do so.
"4. Defendant failed and neglected to have said dog inoculated against rabies.
"5. On Monday, October 6, 1958, at about 9:30 o'clock a. m., said dog violently and viciously assaulted plaintiff while he was two houses away from defendant's house on the same side of the street, and going quietly and peaceably about his lawful business, bit plaintiff on the buttocks, tearing his clothing, and painfully tearing and wounding plaintiff's flesh.
"6. Said dog has previously bitten more than one other person and defendant knew of said fact previously.
"7. The said dog is a large, heavy chow dog named Diamond.
"8. Plaintiff suffered great and excruciating pain, fear, anxiety, embarrassment, and humiliation by having his rear end bitten and his clothing torn and having to go down the street with the blood running out of the wound and the seat of his pants torn.
"9. Plaintiff, as a result of his injuries aforesaid, had to go and did go to Dr. Thomas D. Spitzer in Chamblee, Georgia, for medical care and treatment of his injuries.
"10. Defendant was negligent in the following respects, which negligence directly, proximately, and solely caused plaintiff's injuries herein complained of, to wit: (a) In knowingly allowing said dog, kept on defendant's premises to run and go at large, endangering plaintiff, and the general public; (b) In not warning plaintiff that the dog would bite; (c) In not having said dog inoculated; (d) In failing to keep said animal, knowing it to be dangerous, safely tethered or restrained so as to effectively prevent injury to plaintiff.
"11. Defendant's negligence was the sole proximate and procuring cause of plaintiff's injuries.
"12. In addition to the painful physical injuries, plaintiff has suffered great mental anguish and embarrassment, has been unable to sleep normally at night, and has suffered great worry and fear because of the danger of rabies from the bite of defendant's dog, plaintiff having undergone indescribable agony of mind and fear for his life because of the danger of said dog's turning out to be a rabid dog.
"13. Plaintiff has suffered nervous shock and terror, and will for the rest of his life suffer such, from the fear he now has of dogs as the result of said bite by defendant's dog as aforesaid."
The defendant filed general and special demurrers to the petition, and thereafter, before the same were ruled on, the plaintiff amended by adding the following paragraph to the petition:
"As alleged hereinabove, defendant failed to have said dog inoculated against rabies or to confine or lease said dog, which was a violation of Chapter 88-2a, entitled `Rabies', of the Code of Georgia of 1933 as amended by the Acts of the General Assembly of Georgia of 1945, pages 448-450, and particularly Code Section 88-203a. Said dog was an animal defined by said chapter and covered by said law. Defendant's failure to so control or inoculate said dog which bit plaintiff was negligence per se, that is, a direct violation of a statute law of Georgia, which said negligence per se and law violation caused plaintiff physical pain and suffering and mental anguish and misery which is beyond the power of words to describe. Plaintiff as the direct result of defendant's said negligence suffered fears of death and the anxiety of untold physical suffering each day during the normal incubation period of the rabies disease following said dog bite, because plaintiff had no way of knowing whether he would die the horrible death from rabies or not until the incubation period of rabies had passed, many days after the bite. The time from the bite `til danger of rabies was over was a time of living death and fear and horror each minute of each day, and plaintiff would wake up at night from the constant fear that he might develop rabies from said dog bite."
Thereafter, the court entered an order sustaining defendant's special demurrers to paragraphs 2, 3, 4, 6 and 10 (a) and 10 (b) of the petition, granting the plaintiff 30 days within which to amend to meet those demurrers. The plaintiff failed to amend, and thereafter the court entered an order dismissing the plaintiff's petition. The assignment of error here is on the final order dismissing the petition and on the antecedent ruling sustaining the special demurrers.