Opinion
32816.
DECIDED MARCH 3, 1950.
Action for damages; from McDuffie Superior Court — Judge Perryman. September 19, 1949.
Randall Evans Jr., for plaintiff.
C. Baxter Jones Jr., Powell, Goldstein, Frazer Murphy, Knox Neal, for defendants.
The court did not err in sustaining the demurrer to the plaintiff's petition shown in the opinion, and in dismissing the action upon failure of the plaintiff to amend to meet the ruling of the court within the time provided.
DECIDED MARCH 3, 1950.
Leola Washington sued R. A. Dudley and Frank Jenkins for damages. The petition alleged: "3rd. That on or about the 14th day of July, 1949, the said R. A. Dudley entrusted his automobile truck to said Frank Jenkins, for the purpose of having said Frank Jenkins drive said truck from or near Augusta, Georgia, to Thomson, Georgia. 4th. That the said R. A. Dudley instructed Henry James Washington Jr., to get in said truck and ride in the back part from said point in or near Augusta, to Thomson, Georgia. 5th. That said Henry James Washington Jr., was a minor, aged 15, and was the son of your petitioner, and she was dependent on him for support, and he contributed regularly to her support. 6th. That the said Frank Jenkins was a wild and reckless driver, and altogether incompetent, given to driving at high and reckless rates of speed, without any caution or circumspection whatever, and in such fashion as to endanger those riding with him, as well as other travelers on the public highways. This was known to the said R. A. Dudley at the time of placing said truck in the care and custody of said Frank Jenkins, with instructions to drive it as aforesaid. 7th. That the said Frank Jenkins proceeded to drive towards Thomson, Georgia, over Highway No. 78, same being paved highway, and he operated said truck at a high, dangerous and unlawful rate of speed, to wit, more than sixty miles per hour. 8th. That said Frank Jenkins continued such operation at such unlawful speed until he came to Columbia County, Georgia, and before reaching Harlem, and that he then and there continued to drive at a reckless and unlawful rate of speed, passing other passenger vehicles and trucks that were also going towards Thomson, in a westerly direction, the same direction in which Frank Jenkins was traveling. 9th. That before reaching Harlem, because of his wild and reckless rate of speed, to wit, more than sixty (60) miles per hour, the said Frank Jenkins lost control of said automobile, and allowed it to run off the paved portion of the highway, and onto the shoulder, and down by the side of the road, where it overturned, breaking the neck of and killing said Henry James Washington Jr. 10th. That the negligence of the said Frank Jenkins and the negligence of R. A. Dudley was gross negligence, amount to wilful and wanton conduct in the premises, and said negligence was the proximate cause of the truck's overturning and of the death of Henry James Washington Jr., and said negligence was committed in the following manner, to wit: A. In driving at a rate of speed greater than was reasonable and safe, having regard for the weather condition and circumstances surrounding; the weather being overcast, and the day being dark and cloudy. Thirty to thirty-five miles per hour was a reasonable and safe speed for said truck; and more than that was unsafe and dangerous. B. In driving at a rate of speed greater than allowed by law, to wit, greater than 55 miles per hour, which is negligence per se. C. That the negligence of Frank Jenkins as set forth in said subsections A and B of this paragraph were imputable to the said R. A. Dudley, and he was likewise negligent just as was the said Frank Jenkins, because he was at the time the master and employer of said Frank Jenkins, and had said Jenkins driving the truck for him; and the said R. A. Dudley had knowledge of the recklessness and incompetence of the said Jenkins as a driver of an automobile or truck." The defendants filed the following demurrers: "1. Generally, to the petition as a whole, because it fails to state a cause of action against this defendant and in favor of plaintiff. 2. Paragraph 4 is demurred to specially because the same states a mere conclusion of the pleader, because it does not appear therefrom or elsewhere from the petition how or in what manner Henry James Washington Jr., was instructed by this defendant to get in the truck and ride in the back part to Thomson, or how or for what reason said Henry James Washington Jr., was obligated to obey said instructions. 3. The petition as a whole is demurred to specially because the relationship between this defendant and Frank Jenkins and Henry James Washington Jr., is not set forth, and it does not appear therefrom whether the said Henry James Washington Jr., was employed by this defendant or whether the relationship of master and servant existed between them, nor does it appear therefrom why or for what reason Henry James Washington Jr., was subject to the instructions of this defendant or whether his presence in said truck was for his own accommodation or was as a result of his employment by this defendant." The court passed the following order on the demurrers: "Ground No. 1 of the within demurrer is hereby overruled. Ground No. 2 of said demurrer is hereby sustained, with the right of plaintiff to amend her petition to meet the said ground within fifteen days from the date of this order, else paragraph 4 of the petition is stricken. Ground No. 3 of said demurrer is hereby sustained, with the right of plaintiff to amend her petition to meet said ground within fifteen days from the date of this order, or else plaintiff's petition is hereby dismissed. . . " The defendant R. A. Dudley filed an answer setting forth the defense that the deceased was an employee and the exclusive remedy was under the Workmen's Compensation Law and filed a petition seeking to force the plaintiff to file additional pleadings answering such contention. The court granted this petition and required the further pleadings in default of which it was ordered that the action be dismissed at the expiration of fifteen days. The plaintiff did not amend or plead further, and now excepts to the dismissal of the action and to the overruling of his demurrer to the answer.
The decision of one question will be sufficient for a decision of this case. Paragraph 3 of R. A. Dudley's special demurrer should have been sustained. The allegation is that the deceased was "instructed" to get on the truck. The word "instructed" has various meanings, but, as sued in the petition here, it strongly suggests the exercise of authority. We think that the defendant Dudley is entitled to know exactly what the plaintiff intended to allege. While it may be true that the defendant knows what happened, knows whether the deceased was "instructed" or "invited," he is nevertheless entitled to the information so that he may defend his case. He has the right to defend by demurrer if the facts alleged warrant it. The plaintiff contends that the deceased was an invitee. If that is true she must so allege in unequivocal terms. If the deceased was an employee at least two defenses might be asserted. We think that the ends of justice and fair play demand that the plaintiff fully and plainly allege the facts on which she relies. Since the plaintiff refused to amend to meet the ruling on this demurrer, we can do nothing but affirm the judgment dismissing the action irrespective of the fact that the judge might not have done so if he was in error in his other rulings. This result is brought about by the kind of order that was passed on the demurrers. For a clear understanding of this ruling, see Wilson v. Elijah A. Brown Co., 62 Ga. App. 898 ( 10 S.E.2d 219), reversed by the Supreme Court in Elijah A. Brown Co. v. Wilson, 191 Ga. 750 ( 13 S.E.2d 779.)
In view of this ruling it is not necessary to consider the other questions raised.
The court did not err in dismissing the action for failure of the plaintiff to amend to meet the ruling on the demurrer above considered.
Judgment affirmed. Sutton, C. J., and Worrill, J., concur.