Opinion
33030.
DECIDED NOVEMBER 16, 1950. REHEARING DENIED DECEMBER 20, 1950.
Damages; from Fulton Superior Court — Judge Shaw. February 10, 1950.
Frank A. Constangy, Neely, Marshall Greene, James A. Branch, Thomas B. Branch Jr., T. C. Allen, for plaintiff in error.
Poole, Pearce Hall, J. R. Goldthwaite Jr., Don B. Howe, contra.
1. In an action founded on negligence, mere general averments of negligence are sufficient as against a general demurrer.
2. But a petition containing only such general allegations of negligence is not sufficient to withstand a special demurrer setting up that it fails to set forth any specific act of negligence.
3. "A specification of the particulars of the negligence relied on can not be avoided by an allegation that the plaintiff has been unable to ascertain the particular acts of negligence causing the injury, and that on account of the manner in which the injury was inflicted they were more peculiarly within the knowledge of the defendant than of the plaintiff."
4. But here, so far as it relates to the agency of the defendant corporation — where the defendant corporation is in a better position than the plaintiff to determine who acted in its behalf, and the plaintiff alleges that he does not know the name of the agent and has no means of obtaining the information, and where the time, place, and circumstances of the occurrence which brought about the alleged injury are stated with great particularity, and it should be an easy matter for the defendant corporation to ascertain the names of the agents who were responsible, if responsibility existed, or are blameless if the charge was unfounded — the failure to allege the name of the agent is not a sufficient reason to dismiss the petition on special demurrer.
5. It is not required that a petition be an exhaustive statement of the exact evidence upon which the party will rely in the establishment of his contentions. "On the contrary, so far as matters of inducement and other minor matters are concerned, a clear, brief statement of immaterial matters (the briefer the better) is to be commended." Woodruff v. Hughes, 2 Ga. App. 361 (5) ( 58 S.E. 551).
6. The petition set forth a cause of action for damages for assault and battery upon the plaintiff's wife, and was not subject to the defendant corporation's general demurrer.
DECIDED NOVEMBER 16, 1950. REHEARING DENIED DECEMBER 20, 1950.
Burnell Rochester brought an action against American Thread Company, Elzie Teal, and Durwood Teal, the petition alleging the following: American Thread Company is a corporation of the State of New Jersey, doing business in Georgia, but neither incorporated nor domesticated under the laws of Georgia. (Paragraphs 1-5) The plaintiff is a former employee of the defendant corporation, formerly working at its plant at Tallapoosa, Georgia. (Par. 6) He is also a member of the Textile Workers Union of America C. I. O., which will be referred to in the petition as the union. (Par. 7) There had previously been labor disputes and difficulties between the union and the defendant corporation at its Tallapoosa plant, and at the time herein complained of there existed a labor dispute between the union and the said corporation at its Dalton, Georgia, plant. (Par. 8) Many employees of the defendant corporation at its Tallapoosa plant are members of the union. (Par. 9) The plaintiff, as well as other members of the union at Tallapoosa, was interested in informing the employees of the defendant corporation at Tallapoosa of the true facts of the labor dispute and the strike at Dalton, and among other things was handing out copies of the C. I. O. News Digest, which is a union newspaper, containing a full account of the strike at Dalton. (Par. 10) The defendant corporation was interested in suppressing and preventing the dissemination of news about this strike among its Tallapoosa employees and was willing to go to, and did go to, any means, fair or foul, including criminal violence, intimidation, and other means to suppress the distribution of this news and these facts. (Par. 11) The defendant corporation used, among other means, certain employees at the Tallapoosa plant who were not members of the union. (Par. 12) Among these employees so used were the said Elzie Teal and Durwood Teal. (Par. 13) The said Elzie Teal and Durwood Teal on at least two previous occasions interfered with and prevented members of the Textile Workers Union of America from passing out to those who were willing to receive them, pamphlets similar to those above referred to, on the public street adjacent to the plant of the defendant corporation in Tallapoosa, Georgia. (Par. 14) On one such occasion the said Elzie Teal and Durwood Teal and others came from the plant of the defendant corporation armed with clubs, under threat of which the said union members peaceably departed. On the other such occasion the said Elzie Teal and Durwood Teal and others came from the plant armed with firearms of various and sundry description, under threat of which the said union members peaceably departed. (Par. 15) The said Durwood Teal and Elzie Teal and others in their actions above referred to were a part of an organized plan employed and used by the defendant corporation for the purpose of intimidation, force, and violence and discouraging union activities in general, and at this particular time, the dissemination of the information and facts above set out. (Par. 16) On or about 3 o'clock, p. m., August 19, 1949, the plaintiff was standing on the public street in front of the American Thread Company plant in Tallapoosa, where he was and had been approximately 30 minutes distributing copies of the said union newspaper to such employees who would accept them. The plaintiff's activities were completely peaceable and orderly, and he was engaged in doing nothing more than offering to such employees a copy of the said newspaper containing a full account of the strike at the Dalton plant. (Par. 17) The plaintiff was standing alone and completely unarmed with any weapon of any sort at the said time and place. Over his arm was a stack of the papers he was distributing. (Par. 18) A few minutes after 3 o'clock, Durwood Teal came out of the gate of the plant of the defendant corporation and walked up to the plaintiff, saying "What have you got there?" The plaintiff extended the stack of newspapers for the said Durwood Teal to see, when suddenly and without warning and without further words the said Durwood Teal struck the plaintiff a brutal and stunning blow in the face, which blow knocked the plaintiff to the ground in a stunned condition. (Par. 19) While the plaintiff was thus prostrate on the ground, the said Durwood Teal began beating the plaintiff around the head and face in a savage and violent manner. The blows were severe and stunning in nature, and, in addition, were struck so as to bruise, cut, and deface the plaintiff. The plaintiff alleges that he would in this manner have then and there been beaten into a complete state of unconsciousness, with his head and face damaged and disfigured as much as possible, except for the intervention of the plaintiff's wife, hereinafter described. (Par. 20) At that time and place the occurrence attracted a number of people, who by their humane instincts would have interfered with and restrained this cowardly and brutal assault except for the fact that they were restrained by Elzie Teal as herein related. (Par. 21) At the time the said Durwood Teal accosted the plaintiff, he [was] followed immediately by his father, Elzie Teal, who had a double-barrel shotgun. (Par. 22) While the said savage beating was taking place, the said Elzie Teal stood by with his shotgun, which he pointed at the crowd gathered and directly at anyone who moved to interfere. (Par. 23) Elzie Teal, by brandishing this shotgun at the crowd in general and at anyone who made [as] though he would interfere, successfully prevented anyone of the persons standing by from coming to the assistance of the plaintiff. (Par. 24) The lone exception to this was the plaintiff's wife, who had come up later and observed her husband thus savagely beaten, and who also had observed the activities of the said Elzie Teal in presiding over the beating with the shotgun as above stated. (Par. 25) The plaintiff's wife alone of all of the crowd which had then gathered risked her life and, in defiance of the shotgun, came to the plaintiff's assistance or attempted to do so. (Par. 26) The said Durwood Teal thereupon struck the plaintiff's wife in the face with his fist, knocking her to the street. He thereupon returned his attention to the plaintiff and continued the beating. (Par. 27) The plaintiff's wife, recovering from her temporarily stunned condition, got up and again tried to pull the said Durwood Teal off of the plaintiff. At this point the plaintiff was severely bruised and stunned and unable to help himself in any way. Diverting his attention from the plaintiff for a moment, the said Durwood Teal grasped the plaintiff's wife, placed her head in the crook of his left arm, and in a vicious and brutal manner began beating her in the face and head with his right fist, meanwhile holding her head with his left arm. When he had beaten her about the face and head sufficiently to bruise, shock, and stun her, he dropped her to the ground and again renewed his savage beating of the plaintiff. The plaintiff was meanwhile completely helpless and stunned, and Elzie Teal and his shotgun were continuing to preside over the affair, keeping anyone else off, apparently confident that his son could take care of both the plaintiff and the plaintiff's wife, which the son was very successfully doing. (Par. 28) While the said Durwood Teal was continuing to beat the plaintiff into a state of unconsciousness, the plaintiff's wife arose and, for the third time, attempted to come to his help, although she was by this time bruised, lacerated, and in a shocked condition. The said Durwood Teal did thereupon strike the plaintiff's wife in the face with all of the force he could muster, knocking her violently against a post and into a state of unconsciousness, from which she did not recover until some time much later. (Par. 29) Having thus disposed of the plaintiff's wife, the said Durwood Teal returned to the plaintiff and completed his job of beating him up, working on the plaintiff's face and head as much as he desired, and finally beating the plaintiff into a complete state of unconsciousness, from which he did not recover until some time later. (Par. 30) While the said Durwood Teal was completing his job of beating the plaintiff up, the said Elzie Teal and his shotgun prevented anyone in the crowd from picking up the plaintiff's wife and giving her any sort of first aid, but insisted, with the help of his shotgun, that no one should touch either of them until the beating was complete. (Par. 31) With both beatings complete, and both victims in a completely unconscious state, the said Durwood and Elzie Teal, together with the shotgun, departed, and members of the crowd then placed the plaintiff and the plaintiff's wife in automobiles, giving them immediate first aid, restored them to consciousness, and took them for medical treatment. (Par. 32) The plaintiff is bringing this suit for the loss of services of his wife and for medical bills and other expenses incurred by him as a result of the beating herein described. The plaintiff is unable at the present time to set forth fully and completely the extent of the injuries to his said wife, or the extent of his damages, for the reason that the injuries, the extent of loss of services, and the expenses and other elements of damage have not been fully determined. The plaintiff's wife has been most severely beaten bruised, contused, and lacerated about the head and face, inflicting grave injuries. The plaintiff requests permission of the court to set up by amendment the full extent of these injuries when they have been determined. (Par. 33). The plaintiff fixes the damages which he has suffered as a result of the said beating of his wife in the amount of $50,000. (Par. 34) The attack herein set out and the circumstances set forth are sufficient aggravating circumstances, both in the act and in the intention, so as to justify additional damages under the Code, § 105-2002, both to deter the wrongdoers from repeating the trespass and as compensation for the wounded feelings of the plaintiff. The plaintiff asks that additional damages in the amount of $50,000 be given by virtue of this statute. (Par. 35) The defendant corporation, acting through advice, counsel, and persuasion, did procure the said Elzie Teal and Durwood Teal to commit the wrong herein set out. (Par. 36) The actions herein set out are a part of a joint plan and conspiracy between the defendant corporation and the said Elzie Teal and the said Durwood Teal to suppress, by intimidation, fear, force, and violence, the dissemination of information, as hereinabove set out, and all of the acts herein set out were done as a result of the said plan and conspiracy. (Par. 37) The injury to the plaintiff's wife and damage to the plaintiff, herein set out, were the proximate result of the wilful, intentional, and premeditated acts hereinabove set out. (Par. 38)
The prayers were for process and for judgment against each defendant, jointly and severally, in the sum of $100,000. The plaintiff further prayed that in default of answer, a similar judgment be rendered.
To that paragraph of the plaintiff's petition (36) which alleges that American Thread Company procured the commission of the wrong by advice, counsel, and persuasion of the Teals to commit the wrong, the defendant company demurred specially on the ground that the allegations were too vague, general, and indefinite; and that the plaintiff should be required to set out the name or names of the person or persons alleged to have advised, counseled, and persuaded the Teals to commit the alleged wrong; and should be required to set out the date or dates when it is claimed that the company advised, counseled, or used persuasion to procure the Teals to commit the wrong.
To that paragraph of the plaintiff's petition (37) which alleged that the actions of the Teals were a part of a joint plan and conspiracy between the company and the Teals to suppress the dissemination of the information on the strike in the Dalton plant, the defendant company demurred specially on the ground that the allegation constituted a mere conclusion of the pleader without facts upon which to base the conclusion; and that, if the paragraph was not stricken, the plaintiff should be required to allege the name or names of the persons alleged to have acted for American Thread Company in the matter of entering into any joint plan or conspiracy as referred to in that paragraph, and the time or times when it is claimed that this was done.
For the purpose of meeting these two special demurrers, the plaintiff alleged, by way of amendment, that the names of the persons who had advised, counseled, and persuaded the Teals to commit the wrong are unknown to the plaintiff but well known to the defendants; and that the same is true with reference to the date or dates on which this was done, and that these facts are peculiarly within the knowledge of the defendants; and that the names of the persons who acted for American Thread Company in entering into the joint plan or conspiracy were also unknown to the plaintiff, but peculiarly within the knowledge of the defendants.
Following the allowance of the amendment, the defendant company renewed its demurrers to the original petition and urged these grounds to the petition as amended; demurred generally to the petition as amended; and added the following special demurrers: "2. This defendant demurs to and moves to strike plaintiff's entire petition as amended insofar as this defendant is concerned for the reason that the same is too vague, general, indefinite and uncertain in that the name or names of the person or persons acting for and in behalf of this defendant, American Thread Company, in the matters charged in plaintiff's petition as amended are not set forth, nor is it shown that any such persons were responsible representatives of American Thread Company and acting within the scope of their authority in so doing. Since this defendant, American Thread Company, is alleged to be a corporation; and since a corporation can act only through duly authorized agents; and since the plaintiff's petition, as amended, fails to name any person as acting for American Thread Company in the matters charged in plaintiff's petition, as amended, and fails to show that any such persons were responsible representatives of American Thread Company and acting within the scope of their authority in so doing, the plaintiff's petition, as amended, fails to legally charge the doing of any act by the American Thread Company and should be stricken and dismissed as to American Thread Company. . . 3(a) . . the names of the . . persons, representing or acting for the American Thread Company are not set forth nor is any description of said parties given so that the same may be identified. This defendant says that the plaintiff should be required to give the names of the persons for whose acts this defendant is sought to be held responsible, or the plaintiff should be required to describe such persons with sufficient particularity that the same can be identified so that it may be determined whether this defendant is legally liable for the acts of such person or persons. (b) The allegations of said petition . . fail to show what connection exists between this defendant and the person or persons, for whose acts the plaintiff seeks to hold this defendant responsible. . . The plaintiff should be required to show the connection between this defendant and the person for whose acts the plaintiff seeks to hold this defendant liable and in default of a showing that some connection actually exists between this defendant and such person, or persons, and that this defendant is actually, legally responsible for the acts of such person, or persons, the plaintiff's petition should be stricken." The renewed demurrers to the petition as amended, both general and special, were overruled, and American Thread Company excepted and brings its bill of exceptions to this court, naming the plaintiff and Durwood and Elzie Teal as defendants in error.
1. "A conspiracy is a combination either to accomplish an unlawful end, or to accomplish a lawful end by unlawful means. Brown v. Jacobs' Pharmacy Co., 115 Ga. 429 ( 41 S.E. 553, 57 L.R.A. 547, 90 Am. St. R. 126). It is well settled that, in an action on the case for conspiracy, the conspiracy per se is not the gravamen of the charge, but may be both pleaded and proved as aggravating the wrong of which the plaintiff complains, and enabling him to recover in one action against all as joint tort-feasors. Woodruff v. Hughes, 2 Ga. App. 361 ( 58 S.E. 551); National Bank of Savannah v. Evans, 149 Ga. 67 ( 99 S.E. 123)." Clein v. City of Atlanta, 164 Ga. 529, 534 ( 139 S.E. 46). All facts alleged in good pleading consist either: (1) of the gist or substance of the pleading, which is that without which no legal ground of complaint can appear however perfect in form the pleading may be — it is the essential ground or subject-matter of the complaint; or (2) of matter of inducement, which is that which is in some respect explanatory of the essential ground or of the manner in which it originated or took place; or (3) of matter of aggravation. Whatever else is stated in any part of the pleading is but surplusage; for what is termed form in pleading constitutes no distinct matter, but simply is the manner in which the matter is pleaded. Will's Gould, a Treatise on the Principles of Pleading, p. 196. The recitations in paragraphs 6 to 16, inclusive, are merely introductory and are made by way of inducement leading up to the tort alleged later in the petition, which is the gist of the cause of action. Less certainty is required in setting out matters of inducement than in setting out the gist of the action. Woodruff v. Hughes, 2 Ga. App. 361, 365 ( 58 S.E. 551). Paragraphs 17 to 35, inclusive, undertake to set forth the tort which is the gist of the complaint, and to set forth the damages done thereby wrongfully; and paragraphs 36 to 38, inclusive, allege a conspiracy between American Thread Company, Elzie Teal, and Durwood Teal and thereby connect the assault and battery, the tort, with the defendant corporation. The tort, the assault and battery, being the gist of the action or complaint, the act or acts of the actual perpetrators of the assault and battery causing such damage are required to be set forth with particularity; and we do not understand that any objection is made on this score by the defendant corporation, nor do we think that such an objection, if made, would be good under the allegations of the petition upon this point. As we understand it, one of the objections to the petition is that, after paragraphs 36 and 37 had been amended in view of the special demurrers of the defendant corporation, the petition still did not set out the name or names of the agent or agents of the corporation who had advised, persuaded, and counseled the Teals to commit the wrong; and still did not show the connection between such agent or agents and the defendant corporation, or otherwise sufficiently describe or identify such agent or agents.
With the amending portion appearing in parentheses, paragraph 36, as amended, reads as follows: "The American Thread Company, acting through advice, counsel, and persuasion, did procure the said Elzie Teal and Durwood Teal to commit the wrong herein set out. (The names of the persons alleged to have advised, counseled, and persuaded Elzie Teal and Durwood Teal to commit the said wrong are unknown to your plaintiff but are well known to defendants. The dates when this advice, counsel, and persuasion took place are not known to your plaintiff but are well known to your defendants. These facts, that is the names and dates, are peculiarly within the knowledge of the defendants.)" With the amending portion appearing in parentheses, paragraph 37 as amended, reads as follows: "That the actions herein set out are a part of a joint plan and conspiracy between the American Thread Company and the said Elzie Teal and the said Durwood Teal to suppress, by intimidation, fear, force, and violence, the dissemination of information, as hereinabove set out, and all of the acts herein set out were done as a result of the said plan and conspiracy. (The names of the persons who acted for [through whom] the American Thread Company [acted] in entering into the joint plan or conspiracy and the times when such joint plan or conspiracy was entered into are not known to plaintiff but are well known to defendants. These facts are peculiarly within the knowledge of defendants.)
After these amendments were made, the defendant corporation demurred generally to the petition also, which it had not previously done, and insisted upon its special demurrers.
The gist of the action, the tort, the assault and battery by Elzie and Durwood Teal upon the plaintiff's wife, having been charged with sufficient particularity, both as to time and otherwise, the next question which arises is, are the allegations of the petition sufficient to withstand these demurrers of the defendant corporation? The conspiracy is not the gist of the cause of action, and the pleading of the conspiracy is only for the purpose of aggravating the wrong and joining in one action the persons who may have conspired but did not personally participate in the acts causing the damage. Nat. Bank of Savannah v. Evans, supra.
"The law recognizes the intrinsic difficulty of proving a conspiracy. The allegations with reference to conspiracy are treated as matters of inducement leading up to a more particular description of the acts from which the conspiracy may be inferred. . . Less certainty is required in setting out matters of inducement than in setting out the gist of the action. . . The conspiracy may sometimes be inferred from the nature of the acts done, the relation of the parties, the interests of the alleged conspirators, and other circumstances. The rule is to allow great latitude in setting out in the complaint the particular act upon which the conspiracy is to be inferred, and even to allow individual acts of the conspirators to be averred. `To show conspiracy it is not necessary to prove an express compact or agreement among the parties thereto. The essential element of the charge is the common design; but it need not appear that the parties met together either formally or informally and entered into any explicit or formal agreement; nor is it essential that it should appear that either by words or writing they formulated their unlawful objects. It is sufficient that two or more persons in any manner either positively or tacitly come to a mutual understanding that they will accomplish the unlawful design. And any one, after a conspiracy is formed, who knows of its existence and purposes and joins therein, becomes as much a party thereto . . as if he had been an original member.' 1 Eddy on Comb. § 368." Woodruff v. Hughes, supra. "But when a corporation is a party [to a suit], the only proper mode of describing it [is] by its corporate name . . this being the only name or description, by which a body politic is known in law. For the law takes no notice of the individual members of a corporation, as such, except when the individual right of a corporator is the subject in question." Will's Gould, Ibid., p. 242.
Where the defendants, Elzie and Durwood Teal, the actual perpetrators of the assault and battery, as well as the defendant corporation, are sought to be held responsible, to prove the combination and united action on their part, the allegation of the conspiracy is a convenient and proper mode of alleging such combination and action. "In a case for civil damages caused by conspiracy, the plaintiff, in order to connect any persons with the tort may invoke either the rule of respondent superior or the rule which makes each conspirator the agent and spokesman of all in the unlawful enterprise." 11 Am. Jur. 585, § 55. A corporation must necessarily act by its agents, and when it is alleged that a corporation is responsible for certain acts which it did by its agents, it stands upon no better footing than would an individual when it is alleged that the individual is responsing the tort may invoke either the rule of respondeat superior or the has an equally good opportunity to know whether it did or did not know facts alleged to have come within its knowledge, and therefore is prepared to meet such an allegation with all the evidence at its command. Western Union Telegraph Co. v. Griffith, 111 Ga. 551, 565 ( 36 S.E. 859). The plaintiff here, in order to connect the defendant Thread Company with the tort is not invoking the rule of respondeat superior, but is invoking the rule which makes each conspirator the agent and spokesman of all in the unlawful enterprise. A corporation can act only by its agents, yet for such acts it is responsible, and a simple direct statement that it committed a tortious act by the agent makes the corporation responsible. Conney v. Atlantic Greyhound Corp., 81 Ga. App. 324 ( 58 S.E.2d 559). The pleader here is alleging that the corporation itself committed the act by and through its agent or agents and applies the rule of conspiracy law which makes each conspirator, whether an individual or a corporation, the agent and spokesman of all in the unlawful enterprise. However, the defendant corporation contends that even so, on a special demurrer calling for the names of the agents, the agents must be named upon pain of dismissal of the petition.
The defendant relies strongly on Hudgins v. Coca-Cola Bottling Co., 122 Ga. 695 (1-3) ( 50 S.E. 974), Savage v. Western Union Telegraph Co., 198 Ga. 728 ( 32 S.E.2d 785), and Williams v. Porter, 202 Ga. 113 ( 42 S.E.2d 475). In the case of Seaboard Air-Line Ry. v. Pierce, 120 Ga. 230 (2) ( 47 S.E. 581), the Supreme Court stated: "But a petition containing only such general allegations of negligence was not sufficient to withstand a special demurrer setting up that it failed to set forth any specific acts of negligence"; and that court reversed the trial court for failing, on special demurrer, to require such allegations. In the Hudgins case, supra, the Supreme Court stated: "In an action founded upon negligence, mere general averments of negligence are sufficient as against a general demurrer; but when a special demurrer is filed raising the objection that the allegations are too general, the particulars of the negligence must be set forth. A plaintiff in an action founded upon negligence is confined to proof of the acts of negligence alleged in his petition, or which constitute the res gestae. A specification of the particulars of the negligence relied upon can not be avoided by an allegation that the plaintiff has been unable to ascertain the particular acts of negligence causing the injury, and that on account of the manner in which the injury was inflicted they were more peculiarly within the knowledge of the defendant than of the plaintiff." In Cherokee Mills v. Gate City Cotton Mills, 122 Ga. 268 ( 50 S.E. 82), which involved a suit on a contract, the Supreme Court stated: "When a plaintiff corporation alleges dealings between its officers and the officers of the defendant corporation, but fails to give the names of the officers referred to, it is the right of the defendant by appropriate special demurrer to call on the plaintiff to do so." However, it might be especially noted that, when the Pierce case made its second appearance in the Supreme Court ( Pierce v. Seaboard Air-Line Ry., 122 Ga. 664 (2), 50 S.E. 468), that court stated: "A petition by a widow against a railroad company for the homicide of her husband, who had been an employee of the defendant, which set forth the time when, the place at which, and the circumstances under which the homicide occurred, and alleged that it was the result of the negligence of the officers, agents, and servants of the defendant, was not subject to a special demurrer raising the objection that the names of such officers, agents, and servants, were not set forth in the petition." In the body of the decision in that case, the court differentiated it from the Cherokee Mills case, supra, stating that the Cherokee Mills case was a suit for the breach of a contract, and that "the plaintiff alleged [in the Cherokee Mills case] in one paragraph of the petition that the negotiations were conducted `through its proper officers'; and in another paragraph, which claimed attorney's fees on account of bad faith, it was averred that the plaintiff had approached the defendant company, `through its proper officers, to make good said contract'"; and "It was held that a special demurrer, alleging that the petition did not set forth the names of the officers referred to, was well taken, and that it was neither unreasonable nor a hardship upon the plaintiff to give the names of its own officers, and the names of the officers of the defendant company with whom its officers had dealt. In such a case this information was equally within the knowledge of both parties, if any transaction took place. The ruling, so far as it relates to the officers of the plaintiff company, is directly in line with the ruling now made, and that part of the decision which required the plaintiff to set forth the names of the defendant's officers with whom it dealt is not at all in conflict with the present ruling. If a transaction actually took place between the officers of the two companies, the names of the officers of the defendant were equally within the knowledge of both parties. If no such transaction took place, the names of the officers with whom the transaction was claimed to have taken place was more within the knowledge of the plaintiff than of the defendant, and the defendant was entitled to know the names of such officers."
The instant case comes within the rule announced in the Pierce case on its second appearance in the Supreme Court ( 122 Ga. 664, supra); and the Hudgins case comes within the rule announced in the Pierce case on its first appearance in the Supreme Court ( 120 Ga. 230, supra). See, in this connection, the Cherokee Mills case, supra.
It seems to us that the Savage and the Williams cases, supra, come within the rule announced in the Cherokee Mills case; and, if so, they are differentiated from the instant case for the same reason that the Pierce case on its second appearance in the Supreme Court is differentiated from the Cherokee Mills case. In short, we think that the instant case is governed by the rule in the Pierce case on its second appearance in the Supreme Court, and that the rules in the Hudgins, the Cherokee Mills, the Savage, and the Williams cases are not applicable to the case sub judice in view of the amendments made to paragraphs 36 and 37.
The defendant also relies on Liberty Mutual Insurance Co. v. Lipscomb, 56 Ga. App. 15 ( 192 S.E. 56). In that case there was no allegation except that the corporation conspired, and it was held that, in the absence of a proper amendment, the paragraph referred to should have been stricken on special demurrer, whereas here there was an amendment which differentiated this case from that. It also appeared in that case that the person alleged to have acted for the insurance company was without authority to do so. Where the defendant corporation is in a better position than the plaintiff to determine who acted in its behalf, and the plaintiff alleges that he does not know the name of the agent and has no means of obtaining the information, and where the time, place, and all the circumstances of the occurrence which brought about the alleged injury are stated with great particularity, it should be an easy matter for the defendant corporation to ascertain the names of the agents who were responsible, if responsibility existed, or were blameless if the charge was unfounded, and we do not think that the failure to allege the name of the agent is sufficient to dismiss the petition on special demurrer. Pierce v. S. A. L. Ry. Co., 122 Ga. 664, 669. Where, as here, the defendant corporation is sought to be held responsible, along with the other defendants, Elzie and Durwood Teal, the actual perpetrators of the assault and battery upon the plaintiff's wife, the allegation of conspiracy is a convenient and proper mode of alleging such combination and action in order to prove the combination and united action of the corporation with the other defendants. "In an action on the case for conspiracy, the conspiracy is not the gravamen of the charge, but may be both pleaded and proved as aggravating the wrong of which the plaintiff complains, and enabling him to recover in one action against all as joint tort-feasors." National Bank of Savannah v. Evans, 149 Ga. 67 (1) ( 99 S.E. 123). It is not sought here to allege the conspiracy as the gist of the cause of action, and the statement of the conspiracy is only for the purpose of aggravating the damages and of joining the defendants who may have conspired and yet have not personally participated in the act done. Woodruff v. Hughes, 2 Ga. App. 361, 367 ( 58 S.E. 551).
Paragraphs 36 and 37 as amended and paragraph 38 contain the simple direct statement in the nature of an express general averment of the fact connecting the assault and battery with the defendant corporation. So far as a conspiracy is concerned, no further specification is required than the general terms in which it is pleaded in the petition. National Bank of Savannah v. Evans, supra (headnote 2); Woodruff v. Hughes, supra; National Bank of Savannah v. Evans, 23 Ga. App. 736 ( 99 S.E. 393); Levitan v. Norfolk National Bank, 168 Va. 604 ( 177 S.E. 205); Barnard Bus Lines v. Weeks, 156 Va. 465 ( 158 S.E. 870); South Georgia Power Co. v. Beavers, 39 Ga. App. 374 (1) ( 146 S.E. 924); Holbert v. Allred, 24 Ga. App. 727 (2) ( 102 S.E. 192); Beebe v. Smith, 76 Ga. App. 391 ( 46 S.E.2d, 212); Spalding Construction Co. v. Simon, 36 Ga. App. 723 ( 137 S.E. 901); Allen v. Allen, 196 Ga. 736 ( 27 S.E.2d, 644); Coffee v. South Ga. Farmers Fire Ins. Assn., 29 Ga. App. 685 (2) ( 116 S.E. 653); Atlanta Trust Co. v. National Bondholders Corp., 188 Ga. 761 ( 4 S.E.2d 644); Gardner v. Preston, 2 Day (Conn.) 205, 209 (2 Am. D. 91, 93); Ratcliffe v. Walker, 117 Va. 569 ( 85 S.E. 575).
The petition as amended is exempt from the special demurrers urged against it. Reasonable definiteness and certainty is all that should be required to exempt it from special demurrer. Hobbs v. Holliman, 74 Ga. App. 735, 739 ( 41 S.E.2d 332); Pierce v. S. A. L. Ry. Co., 122 Ga. 664, 669 ( 50 S.E. 468). The facts of each of the following cases differentiate them from the instant case: Weems v. Albert Pick Co., 33 Ga. App. 579, 580 ( 127 S.E. 819); Bates v. Southern Ry. Co., 52 Ga. App. 576 ( 183 S.E. 819); Stewart v. Peerless Furniture Co., 70 Ga. App. 236 (3) ( 28 S.E.2d 396); Norris v. Hart, 74 Ga. App. 444, 445 ( 40 S.E.2d 96). The court did not err in overruling either of the special demurrers.
2. From what has been said in the foregoing discussion on the rulings on the special demurrers, it is apparent that the petition was not subject to the defendant corporation's general demurrer.
Judgment affirmed. Gardner and Townsend, JJ., concur.