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Damages; from Fulton Superior Court-- Judge Shaw. February 17, 1950. (Application to Supreme Court for certiorari.)
1. Where a demurrer, filed after a material amendment, does not in terms renew the original demurrer filed prior to the amendment, no question as to the original demurrer is presented and the case will be decided without regard to the original demurrer.
2. Where the allegations showed that the plaintiff was an invitee on the premises of the defendant, allegations in the alternative, charging the defendant with actual or with constructive knowledge of the conditions producing the injury, were sufficient.
Clarence Sigmon sued Atlanta Paper Company and American Fire Proofing & Engineering Company Inc. for damages for personal injuries, and alleged in the petition as amended: that on May 6, 1949, Atlanta Paper Company was erecting appellant at Ashby and Marietta Streets in Atlanta; that the Grinnell Company, a corporation, was employed to install and was at the time installing in said plant a sprinkler system; that the plaintiff was an employee of the Grinnell Company and as such was an invitee on the premises; that the defendant, American Fire Proofing & Engineering Company, had erected a wall, a part of the plant structure, expending the entire length of the south side of the building and that a floor or roof covering a part of the south side had also been erected; that the said wall was constructed of concrete blocks 8 by 8 by 16 and was approximately 20 feet high, 200 feet long and eight inches thick; that a part of this wall had been built on filled-in, loose earth which lead receded from the foundations of the wall and that this had caused a crack in the wall from the bottom to the top; that the wall was not anchored to the steel form of the building or otherwise braced; that the City of Atlanta is located on a series of hills approximately 1000 feet above sea level, and that by virtue of its location is exposed to winds of high velocity and that during the months of April and May it is usually for the winds to reach a velocity of from thirty to forty miles an hour, a fact known to the defendants, or one that, in the exercise of ordinary care, should have been known to them before undertaking and permitting the erection of the said building; that on the date aforesaid the plaintiff was engaged in his work on the premises when a sudden rainstorm began, accompanied by lightning and high wind; that the plaintiff in company with other workmen ran toward the shelter afforded by the covered portion of the said building and in so doing passed along the said wall near the southeast section thereof; that suddenly and without warning the wall caved outwardly, falling on a number of workmen, including the plaintiff, and crushed and injured the petitioner in certain particulars; that there were no guardrails or other effects to warn the plaintiff of the dangerous and defective condition of the wall although the defendants knew, or in the exercise of ordinary care ought to have known, that workmen passed to and fro along the said wall at all hours of the day during the progress of the work; that the defendant American Fire Proofing & Engineering Co. was negligent in certain particulars (which will not be set out inasmuch as no question is presented as to the sufficiency of the allegations relative to that defendant) and that the defendant Atlanta Paper Co. was negligent in the following particulars: "(a) In failing to require the foundation for said wall to be set in solid earth. (b) In permitting the wall to be erected on loose earth. (c) In failing to require the wall to be securely anchored to the steel superstructure. (d) In permitting the wall to be left unanchored. (e) In failing to require braces be erected to hold the wall in place. (f) In allowing the wall to be erected without being braced or anchored. (g) In permitting said wall to be built without sufficient strength to withstand the usual winds of high velocity of from thirty (30) to forty (40) miles per hour which prevail in and about Atlanta in April and May of each year, which said winds of high velocity were blowing at the same timed the wall fell and which said winds proximately contributed to its falling. (h) In failing to place guardrails or warnings about said defective wall so as to prevent invitees, including petitioner, from being exposed to the falling of said dangerous and defective wall. (i) In failing to warn petitioner of the defective conditions of said wall as hereinabove set forth. (j) In failing to inspect the premises so as to discover the faulty condition and negligent construction of said wall. (k) In allowing said wall to remain in its dangerous condition when defendant discovered or by the exercise of ordinary care could have discovered its dangerous condition." The plaintiff further alleged that the negligence of the defendants was the direct and proximate cause of the injuries and damage suffered by him, and he prayed for damages in the sum of $25,000.
The defendant demurred specially to certain paragraphs of the petition and the plaintiff amended paragraphs 12 and 18. The defendant filed additional demurrers attacking specially the language of the amended petition relative to the allegations of knowledge on the part of the defendant of the prevailing wind conditions in Atlanta at that time of year on the ground that such allegations, that the defendant knew or should leave known of such wind conditions, were duplicitous and ambiguous and that, such language being in the alternative, petitioner should be required to elect as to whether he intends to charge actual knowledge on the part of the defendant or merely constructive knowledge of such fact, and the defendant moved to strike that part of the petition. The defendant also demurred to the petition generally "upon the ground that the same fails to set forth a cause of action."
1. Inasmuch as the demurrer filed on January 25, 1950, after the amendment to the petition was filed, does not purport to renew the original demurrer, we have for consideration only the question of whether the petition as amended was subject to this latter demurrer. General Accident, &c. Corp. v. Way, 20 Ga. App. 610 (2) (92 S. E. 650); Smith v. Dalton Ice Co., 45 Ga. App. 447 (1) (165 S. E. 144); Satlof v. State of Georgia, 52 Ga. App. 208 (1) (182 S. E. 864); Livingston v. Barnett, 193 Ga. 640 (1), 649 (19 S. E. 2d, 385); Mooney v. Mooney, 200 Ga. 395 (1) (37 S. E. 2d, 195).
2. The special demurrer attacks the allegations of the petition relating to the knowledge of the defendant of the wind conditions generally prevailing in and about the City of Atlanta in April and May on the ground that the plaintiff should be required to allege and rely upon either actual knowledge or constructive knowledge on the part of the defendant, and not on both at the same time. We are of the opinion that, under the rulings in Fulton Ice & Coal Co. v. Pece, 29 Ga. App. 507 (116 S. E. 57), and Kelley v. Black, 203 Ga. 589 (47 S. E. 2d, 802), these allegations are sufficient. The allegations of fact in the petition show clearly that the plaintiff was an invitee on the premises of the defendant, and the rule, as stated in the cases cited, is that if the defendant, by the exercise of ordinary care, could have discovered the defect causing the injury, he will be liable for a failure to warn invitees coming upon the premises of such defect even though he did not actually know of its existence, where such defect proximately contributes to the injury. To be sure, it cannot be said that the wind was a defect, but it acted upon the defect alleged to exist and was a condition or circumstance contributing to the injury, which under the allegations of the petition the defendant was reasonably chargeable with knowledge of, and for these reasons the court did not err in overruling the special demurrers.
3. In the argument upon the general demurrer, the principal factor insisted upon by the defendant is that the petition fails to show what the relation between the defendant, Atlanta Paper Company, and American Fire Proofing & Engineering Company was, and it is argued that under this state of facts it must be presumed, construing the petition most strongly against the plaintiff, that the American Fire Proofing & Engineering Company was an independent contractor and that the defendant paper company had surrendered all right of control and inspection to the said contractor who had custody of the premises, and that the sole duty of inspection and warning invitees rested with that company. This reasoning is, in our opinion, unsound. The plaintiff does not rely upon the contract between the two defendants as a basis for his right of action. If the defendant had in fact surrendered to the contractor control over the premises to such an extent that it had not the right to go thereon to make inspections to determine what progress was being made with the work or whether the work was being done in conformity with the contract or whether the work was being carried on' in a safe and prudent manner, or for any other purpose, then such facts would be matters of defense and the defendant cannot require the plaintiff to plead such facts so that they may be made the basis of a demurrer. See Phinizy v. Phinizy, 152 Ga. 694 (2) (111 S. E. 433).
"A tort is the unlawful violation of a private legal right; or it may be the violation of a public duty, by reason of which some special damage accrues to the individual. Code, 105-101. All that a plaintiff need allege to withstand the attack of a general demurrer is the factum of the duty, whether by contract or otherwise, a violation of that duty, and damages resulting from that violation. 41 Am. Jur., Pleading, 78." Vickers v. Georgia Power Co., 79 Ga. App. 456, 458 (54 S. E. 2d, 152). In the instant case the duty arose to warn the plaintiff, as one of a general class of invitees known to the defendant to be upon the premises, of any latent defect in the premises which might result in injury or damage to the plaintiff, a violation of this duty was clearly alleged, as was the injury suffered. For these reasons the petition stated a cause of action and the trial court did not err in overruling the general and special demurrers.
Judgment affirmed. Sutton, C. J., and Felton, J., concur.
James M. Embry, Dunaway, Riley & Howard, E. A. Wright, Bryan, Carter & Ansley, contra.
Edgar A. Neely Jr., Neely, Marshall & Greene, for plaintiff in error.
Saturday May 23 05:46 EDT

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