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Lawskills.com Georgia Caselaw
LESTER v. INTERNATIONAL BROTHERHOOD OF BOILERMAKERS et al.
41713.
PANNELL, Judge.
Action for damages. Chatham Superior Court. Before Judge McWhorter.
1. The trial judge had the right to construe his order of September 16th due to the ambiguity in the language therein, and since the same ambiguity appears in the ruling on the special demurrers, this language in reference to the special demurrers should be given the same construction as that given by the trial judge to the similar language on the general demurrers; thus construing the language, it appears that the special demurrers were not passed on.
2. There being no statute in this State, nor any rule of court presented, which requires that demurrers to a petition which has been amended be renewed within any particular period of time, it does not appear that the trial court erred in refusing to dismiss the demurrers on the sole ground that they were not renewed to the petition within the time required by law. Whether the special demurrers should have been dismissed because they were filed too late is not a question presented for decision.
3. "The simplest test of the sufficiency of a petition against is alleged is whether the defendant can admit all that is alleged and still escape liability. Ga. R. & Banking Co. v. Rayford, 115 Ga. 937 (42 SE 234); Pullman Palace Car Co. v. Martin, 92 Ga. 161 (18 SE 364)." Harvey v. Zell, 87 Ga. App. 280, 284 (73 SE2d 605); Hartridge v. Savannah News-Press, 107 Ga. App. 274, 276 (129 SE2d 536). The petition, as amended, although somewhat general in its allegations relating to agency, sufficiently alleged a cause of action against the defendant. See, in this connection, Gilmer v. Allen, 9 Ga. 208 (4); Lewis v. Amorous, 3 Ga. App. 50, 53 (59 SE 338); Conney v. Atlantic Greyhound Corp., 81 Ga. App. 324, 327 (58 SE2d 559); Chatham v. Texaco, Inc., 109 Ga. App. 419 (136 SE2d 489). It follows, therefore, that the trial court erred in sustaining the general demurrer to the petition.
Elmer L. Lester brought an action against the International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmith Forgers and Helpers. The petition alleged that the defendant was a foreign corporation with an agent and place of doing business in the County of Chatham and State of Georgia, being the county in which the action was brought. The petition further alleges that the plaintiff is an employee of Great Danes Trailers, Inc., in said county, and that he is not a member of said defendant union and that at various times and places certain acts were committed by the defendant union resulting in damage to plaintiff. Paragraph 7 of said petition is as follows: "That on June 6, 1963, June 13, 1963, and June 14, 1963, respectively, the defendant, in an attempt to coerce and intimidate the plaintiff the right to work because plaintiff is not a member of the defendant union and continues to work at Great Dane Trailers, Inc., actively instigated, superintended, encouraged, aided, abetted, and participated in, with many others, who, on information and belief, wee and now are members of the defendant union, but whose names are unknown to plaintiff, shooting plaintiff's automobile with pellets from a shotgun, while parked at plaintiff's home located at No. 610 Liberty Avenue, Savannah, Georgia, hollered obscene epitaphs [sic] to plaintiff's wife when she drove through the aforesaid picket line. That on June 25, 1963, the defendant further actively instigated, superintended, encouraged, aided, abetted, and participated in, with many others, who, on information and belief were, and now are, members of the defendant union but whose names are unknown to plaintiff, the throwing of high explosives against plaintiff's said home, causing severe damage thereto and serious personal injuries and pain and suffering to the plaintiff, requiring plaintiff to be hospitalized." Paragraph 8 of said petition alleges: "That since the defendant union, through its members, agents and employees, began picketing plaintiff's place of employment, the aforesaid members of the defendant union have perpetrated and carried out numerous acts of violence, bombing, shooting and malicious mischief directed against plaintiff and his fellow employees and their families, as part of the defendant's plan, scheme and design to accomplish the aforesaid unlawful objectives. Among such acts of violence, bombing, shooting, and malicious mischief are the following: . . ." The paragraph then gives the dates of various acts of violence occurring to various named persons and property, being 51 in number. The petition was filed on July 26, 1963, by adding other instances of alleged
violence to paragraph 8 of the petition. On August 28, 1963, the defendant filed general and special demurrers to the petition as amended.
James Edward McAleer, Frank O. Downing, for appellees.
Joseph B. Bergen, Converse Bright, for appellant.
ARGUED JANUARY 4, 1966 -- DECIDED MARCH 16, 1966 -- REHEARING DENIED MARCH 30, 1966.
Friday May 22 20:18 EDT


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