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MIDLAND PROPERTIES COMPANY v. KENNEDY.
SAVANNAH & ATLANTA RAILWAY COMPANY v. KENNEDY.
MAYOR & ALDERMEN OF SAVANNAH v. KENNEDY.
SAVANNAH ELECTRIC & POWER COMPANY v. KENNEDY.
37664.
37665.
37666.
37667.
Action for damages. Savannah City Court. Before Judge Alexander. February 10, 1959.
NICHOLS, Judge.
The petition set forth a cause of action against each defendant, and, no error harmful to any of the defendants was shown by the special demurrers.
Mrs. Betty Lasley Kennedy, as the widow of Walter Aaron Kennedy, sued Midland Properties Company, Savannah & Atlanta Railway Company, Savannah Electric & Power Company and The Mayor & Aldermen of the City of Savannah to recover because of the death of her husband who was allegedly instantly electrocuted in the same tragic incident as that shown in the petition of James David Farmer, which petition is fully set forth in Midland Properties Co. v. Farmer, ante. The separate demurrers of each defendant to the petition as amended were overruled, and each defendant in a separate writ of error assigns error on the judgment adverse to it.
1. All but one question presented in the writs of error In the cases sub judice are controlled adversely to the defendants by the decision in Midland Properties Co. v. Farmer, ante, find only this one question which is not so controlled will be dealt with hereinafter.
2. The defendant Savannah Electric & Power Company demurred to a part of paragraph 1 count 3 of the petition. This paragraph of count 3 adopted various paragraphs of count 1 by express reference and included therein were paragraphs "60, 61, 62, 63, 64, 65 and 66." The demurrer was to the part adopting paragraphs 60 through 66 because count 1 did not contain any such numbered paragraphs.
Not only error but hurt must be shown in order to obtain a reversal of the judgment of the trial court (Gulick v. Mulcahy, 95 Ga. App. 158, 160, 97 S. E. 2d 362), and, "Ordinarily error is presumed hurtful unless it appears to have had no effect upon the result of the trial." Rogers v. Johnson, 94 Ga. App. 666, 682 (96 S. E. 2d 285).
While this obvious typographical error should have been corrected by the plaintiff when it was called to her attention, it is just as obvious that the reference to the nonexisting paragraphs of count 1 could not have harmed the defendant Savannah Electric & Power Company since it could have no effect upon the result of the case. Therefore, the judgment overruling such demurrer can not be reversed. However, since this reference to the nonexisting paragraphs should be stricken from count 3 of the petition direction to do so is hereby given.
FELTON, Chief Judge, dissenting.
See dissenting opinion in Midland Properties Co. v. Farmer, ante.
Allyn M. Wallace, Aaron Kravitch, Phyllis Kravitch, contra.
Bouhan, Lawrence, Williams, Levy & McAlpin, for Savannah Electric &c. Co.
Oliver, Davis & Maner, Edwin Maner, Jr., for Mayor &c. of Savannah.
Hitch, Miller & Beckman, Robert M. Hitch, John E. Simpson, for Midland Properties Co. and Savannah & Atlanta Ry. Co.
DECIDED JUNE 24, 1959 -- REHEARING DENIED JULY 17, 1959.
Saturday May 23 00:48 EDT


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