Opinion
37171, 37172, 37173.
DECIDED FEBRUARY 25, 1959.
Action for damages. Fulton Superior Court. Before Judge Alverson. March 11, 1958.
John D. Jones, Greene, Neely, Buckley DeRieux, for John Deere Plow Company.
Palmer H. Ansley, Smith, Field, Doremus Ringel, for Southeastern Fair Association.
T. J. Long, Ben Weinberg, Jr., for Jones.
John H. Hudson, Wm. R. Hudson, Newell Edenfield, contra.
Count 2 of the petition was not subject to either the general or special demurrers.
DECIDED FEBRUARY 25, 1959.
Mrs. Virginia M. Johnson sued the City of Atlanta, the Southeastern Fair Association, John Deere Plow Company, and H. Candler Jones trading as Quality Farm Supply Company for injuries allegedly sustained when she was struck by a tractor while sitting on a bench at the Southeastern Fair. The petition, as finally amended, was in 2 counts and the last three named defendants filed general and special demurrers which the trial court overruled. On appeal ( John Deere Plow Co. v. Johnson, 98 Ga. App. 36, 105 S.E.2d 33), this court reversed the judgment of the trial court as to the general demurrers and held that both counts of the plaintiff's petition were subject to the general demurrers filed. Thereafter, on writ of certiorari ( Johnson v. John Deere Plow Co., 214 Ga. 645, 106 S.E.2d 901), the Supreme Court affirmed the judgment of this court as to count 1 of the petition but reversed so much of the judgment of this court as held that count 2 of such petition failed to set forth a cause of action as against general demurrer. For a more complete history of the case, as well as the allegations of the petition see the above-cited cases.
1. This court, on July 9, 1958, rendered a judgment reversing the judgment of the trial court overruling the general demurrers to both counts of the petition. Thereafter, on writ of certiorari, the Supreme Court affirmed the decision of this court holding that count 1 of the petition was subject to general demurrer, but reversed so much of said judgment and decision as held that count 2 was subject to general demurrer. Accordingly, that part of the judgment of this court, which was reversed by the Supreme Court, is vacated.
2. The special demurrers to count 2 of the petition were not passed upon by this court in the judgment rendered July 9, 1958; however, such demurrers, which alleged that certain allegations contained in count 2 of the petition were conclusions, etc., need not now be passed upon except to say that under the decision of the Supreme Court, supra, these allegations were not conclusions, but well pleaded facts. "Well pleaded facts are to be taken as true on the hearing on a demurrer, but a general demurrer does not admit conclusions of the pleader where the facts are not averred upon which the conclusions are supposed to rest. Fowler v. Southern Air Lines, 192 Ga. 845 ( 16 S.E.2d 897)." Dowling v. Southwell, 95 Ga. App. 29 (4) ( 96 S.E.2d 903). Accordingly, the trial court did not err in overruling the special demurrers of the defendants to count 2 of the petition which demurrers contended that certain allegations of such count were conclusions, etc.
3. The defendant Jones filed a special demurrer to one paragraph of count 2 of the petition in which it was alleged that the ownership of the tractor was not expressly alleged. This allegation of the petition was was not subject to such demurrer since the petition was not based on ownership of the tractor, but on the manner of display, regardless of whether the defendant Jones or the defendant John Deere Plow Co. actually owned such tractor.
The judgment of the trial court overruling the general and special demurrers to count 2 of the petition is therefore affirmed.
Judgment reversed in part and affirmed in part. Felton, C. J., and Quillian, J., concur.