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Lawskills.com Georgia Caselaw
CHILDS v. BLAINE.
33629.
Action for damages; from Fulton Superior Court-- Judge E. E. Andrews. April 4, 1951.
MACINTYRE, P. J.
Where, in an action for damages, the court sustains a general demurrer to the petition with time given in which to amend in default of which the case to stand dismissed, and the plaintiff acquiesces in the judgment by amending in an effort to meet the criticism of the demurrer, but it appears that the amendment adds nothing new or of substance to the petition and is but a mere elaboration of the averments of the original petition, under the law of the case, the petition as amended fails to set forth a cause of action and the court does not err in sustaining a renewed general demurrer to the petition as thus amended.
As originally instituted, this suit by Marquess W. Childs was against Liberty Mutual Insurance Company, John Wesley Harkins, alleged to be a non-resident of the State of Georgia, residing in the State of Louisiana, and Clarence B. Blaine, alleged to be a non-resident of the State of Georgia, residing in Jackson, Mississippi. Liberty Mutual Insurance Company was served in Fulton County, Georgia; Clarence B. Blaine acknowledged service, but John Wesley Harkins was never served, did not acknowledge service, and therefore is not a party to the suit. Liberty Mutual Insurance Company was stricken as a party defendant on demurrer to which no exception was taken and no further reference to that party defendant need be made here. The case as it now stands is solely against the defendant Blaine. The material allegations of the original petition, after deleting all reference to Liberty Mutual, are substantially as follows: (7) The plaintiff is the dependent father of a minor, Billie Childs; the mother of the said minor is not living; and the said minor child lost his life on July 4, 1949, by reason of the following facts. (8) During the year 1949, the defendant Blaine was engaged in the distribution of certain magazines and other publications and the defendant Blaine employed Billie Childs in violation of the statute of this State with reference to the employment of minors. Billie Childs was then imported to Fort Worth, Texas, where he lost his life by reason of the following facts. (9) The defendant Blaine was negligent in the following respects: (1) He knowingly employed a minor without the consent of his parent and had him transferred to the State of Texas in violation of the statute; (2) The said minor was under the custody and control and immediate direction of the defendant. (14) The plaintiff was solely dependent on the said Billie Childs and the plaintiff has not surrendered parental control of Billie, nor had he given his consent for the defendant to employ Billie. (15) The said minor, Billie Childs, was driving a certain Ford station wagon, belonging to the defendant Blaine, in a northeasterly direction along the public highway leading to Fort Worth, Texas, in the State of Texas, on July 4, 1949. The defendant John Wesley Harkins was driving his heavy 1948 Diamond Trailer Truck along another highway, or near the point where the two highways intersect, and as Harkins approached the intersection, he failed to bring his truck to a stop and violently struck the station wagon which Billie Childs was driving and caused Billie Childs such injuries that he died as a result. Harkins was negligent in the following respects: (1) In failing to have his truck under immediate and full control; (2) In failing to bring his truck to a full stop at the intersection; (3) He was exceeding the speed limit at the time and place alleged; (4) He struck the station wagon driven by Billie Childs; (5) He failed to yield the right of way to Billie Childs; (6) He struck the station wagon driven by Billie Childs and inflicted fatal injuries upon him.
The trial court sustained the defendant Blaine's general demurrer to the foregoing petition with leave to amend within twenty days "in default [of which] said case to stand dismissed". There was no exception by the plaintiff to this ruling, but within the twenty days allowed for amending, he offered the following amendment, the allegations of which are substantially as follows: (18) The defendant Blaine was engaged in the business of distributing various magazines and publications during the year 1949, and he was especially so engaged on July 4, 1949. The defendant employed the said minor child, Billie Childs, to drive a motor vehicle, and in so doing he violated Code 54-303, which provides that no minor shall be employed to operate an automobile, motor car, or truck. (19) The defendant Blaine employed Billie Childs in violation of Code 54-304 in that he failed to secure an employment certificate to indicate and show the age of the said minor, (20) The defendant Blaine employed Billie Childs in violation of Code 105-1803, in that the minor was incapable of consenting to such employment at the time and place as herein alleged. Billie Childs was under the custody and control of the plaintiff, his father, at the time, and he had not given his approval and consent for the employment of his minor child. (21) The plaintiff is entitled to the services of the deceased child, and the defendant, by his acts of employment in violation of the laws of this State, was the sole and paramount cause of the minor child's death. The defendant violated Code 54-301 and as a matter of law was guilty of negligence per se. (22) The defendant Blaine knowingly employed the said minor and the said minor was at the time of his death under the custody, control, and immediate direction of the defendant, and the defendant was negligent in permitting the minor child to operate the motor car at the time and place alleged. (23) The defendant's acts of negligence were the proximate cause of the said minor's death. (24) The defendant Blaine was negligent in the following respects: (1) In hiring the minor child to operate a motor vehicle at the time and place alleged in violation of Code 54-303; (2) In employing the minor child without first obtaining an employment certificate in violation of Code 54-301; (3) In violating Code 54-301, he was guilty of negligence per se; (4) In violating the statute by failing to secure the parent's consent to employ the minor child; and (5) In employing a minor who was incapable of consenting to such employment.
The defendant Blaine renewed his general demurrer to the petition as amended and the trial court entered the following order thereon: "The above renewed general demurrer coming on for a hearing and after argument, it is ordered that said demurrer be and the same is hereby sustained. A general demurrer of the above defendant to plaintiff's petition having heretofore been sustained and the plaintiff having failed to amend his petition to meet the grounds of the said demurrer within the time allowed by the court, the foregoing petition is hereby dismissed as to the defendant Clarence B. Blaine." The plaintiff excepted to that judgment.
1. It has long been a familiar rule of pleading and practice that if a petition sets out a cause of action under any theory it is error to dismiss the action, as against general demurrer. Wometco Theatres Inc. v. United Artists Corp., 53 Ga. App. 509, 511 (186 S. E. 572); Ford v. Fargason, 120 Ga. 708 (48 S. E. 180); Boyd v. McArthur, 120 Ga. 974 (48 S. E. 358). In this case the trial court sustained the general demurrer and, therefore, necessarily held that the petition failed to state a cause of action under any theory. The plaintiff did not take exception to that judgment, but under the court's order allowing time within which to amend, he amended, and by this amendment, he acquiesced in the judgment that the original petition failed to state a cause of action and that judgment became the law of the case. Rivers v. Key, 189 Ga. 832 (7 S. E. 2d, 732); Sherling v. Continental Trust Co., 175 Ga. 672 (165 S. E. 560); McConnell v. Frank E. Block Co., 26 Ga. App. 550 (106 S. E. 617); Darling Stores Corp. v. Beatus, 197 Ga. 125 (28 S. E. 2d, 124). The question for decision is whether the amendment met the criticisms of the demurrer as provided by the judgment.
The gist of the negligence charged against the defendant in the original petition was that he had violated the Georgia statute with reference to the employment of minors; that the plaintiff's minor son was driving the defendant's station wagon at the time of its collision with a truck driven by a third person; and that the minor child of the plaintiff was under the custody, control, and direction of the defendant at the time of the collision. The averments of the amendment added nothing new or of substance, but were a mere elaboration of the averments of the original petition, going merely into detail as to the specific sections of the statute with reference to the employment of minors which had been violated. Therefore, under the law of the case, the petition as finally amended alleged no cause of action, and the court did not err in sustaining the general demurrer to the petition as amended.
T. J. Long, for defendant.
W. L. Nix, D. B. Phillips, for plaintiff.
DECIDED NOVEMBER 20, 1951.
Saturday May 23 05:18 EDT


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