Opinion
41448, 41471.
ARGUED OCTOBER 6, 1965.
DECIDED NOVEMBER 5, 1965.
Action for damages. Columbia Superior Court. Before Judge Kennedy.
Fulcher, Fulcher, Hagler Harper, W. M. Fulcher, A. M. Miller, for plaintiffs in error.
Randall Evans, Jr., contra.
Count 2 of the petition failed to state a cause of action for punitive or exemplary damages, in that it did not allege any acts of wilful and wanton misconduct amounting to a conscious indifference to the consequences on the part of the defendants, and the general demurrer thereto should have been sustained. The evidence of misconduct on the part of the defendants' agents and servants introduced without objection, though sufficient to authorize a finding of negligence proximately causing the plaintiff's injuries, was not sufficient to authorize a charge submitting to the jury the issue of whether the plaintiff was entitled to recover punitive damages on account of wilful and wanton misconduct. Therefore, the verdict awarding punitive damages was not authorized by the evidence, but since no other errors of law appear, the error in overruling the general demurrer to count 2 and in charging the jury will not require a reversal of the case, but may be cured by the plaintiff writing off the amount awarded by the jury as punitive damages.
ARGUED OCTOBER 6, 1965 — DECIDED NOVEMBER 5, 1965.
Vernon Pierce Young sued Louisville Nashville Railroad Company and Atlantic Coast Line Railroad Company to recover damages on account of the destruction of his Ford truck and to recover the value of certain other personal property damaged when the truck was struck by a train operated by the defendants on a public crossing in Grovetown, Columbia County, Georgia. According to the allegations of the petition the defendants' line of tracks lies in an approximately east-west direction in Grovetown. The plaintiff alleged that he was engaged in moving a house trailer with his truck, and drove the truck onto the crossing in question; that because of the defective construction and maintenance of the crossing, the truck choked down and became stalled thereon; that as plaintiff was about to restart the truck the defendants' freight train, consisting of three diesel units and at least 75 cars, approached Grovetown from the west proceeding at a speed of approximately 50 miles per hour, and rounded a curve approximately 200 yards before reaching the crossing on which plaintiff's truck was stalled; that because of its speed the engineer was unable to stop the train, though he applied the brakes at a distance of approximately 150 yards before reaching the crossing, and that the engine struck plaintiff's truck, demolishing it and rendering it completely useless, dragging it a distance of at least one-half mile before the train could be brought to a stop. In count 1 of the petition it was alleged that defendants were guilty of the following acts of negligence proximately causing the damages sued for: "(a) In maintaining Hardy's Crossing in Grovetown in a hazardous and dangerous condition, in that the depression between the main line and the sidetrack was such that it brought the truck to a stop whereby at the speed of from three to four miles per hour the front wheels of the truck could not be forced over the rails without the motor on said truck choking down as was done. (b) In failing to maintain any crossing in Grovetown by which travelers on State Highway No. 223 and particularly trucks which were pulling house-trailers, with approximately ten inches clearance might safely negotiate and cross said railroad tracks without obstruction. (c) In failing to maintain any warning signal at Hardy's Crossing as to the approach of trains, whereby persons who attempt to cross might be warned for at least one minute before a train crossed over said crossing. (d) In operating a long and heavy train, powered by three diesel units, over its line of railroad tracks, and through the incorporated town of Grovetown at a speed greater than was reasonable and safe, considering the density of population and the great number of vehicles used at the crossing daily. (e) In approaching said crossing in a populous community, and rounding a curve, whereby the engineer had no view of the crossing until he was approximately two hundred yards therefrom, at the reckless speed of fifty miles per hour, which rendered the train out of control, whereby it could not be stopped until it had passed over Hardy's Crossing, and the main crossing, and the east crossing, no matter what emergency might exist to require the stopping of the train before reaching the said crossing. (f) In failing to slow the locomotive train as it approached said curve and said crossing so as to have the train under control at said Hardy's public Crossing. (g) In operating said train in such fashion that it claimed the right of way over all motor vehicles and pedestrians seeking to use public crossing, oblivious to their situation as it sped through the town of Grovetown at the aforementioned reckless speed while out of control."
In count 2 of the petition plaintiff incorporated all of the paragraphs of count 1 respecting the manner in which the collision occurred, and then alleged that the conduct of the defendants' engineer amounted to a conscious indifference to the consequences which was equivalent to wilfulness and wantonness in the following particulars: "(a) In approaching said crossing in a populous community, and rounding a curve, whereby the engineer had no view of the crossing until he was approximately two hundred yards therefrom, at the reckless speed of at least fifty miles per hour, which rendered the train out of control, whereby it could not be stopped until it had passed over Hardy's Crossing, and the main crossing, and the east crossing, no matter what emergency might exist to require the stopping of the train before reaching the said crossing, (b) In failing to slow the locomotive train as it approached said curve and said crossing so as to have the train under control at the said Hardy's public Crossing, (c) In operating said train in such fashion that it claimed the right of way over all motor vehicles and pedestrians seeking to use the public crossings, oblivious to their situation and whether they had entered and were upon the crossing before it reached same, as it sped through the town of Grovetown at the aforementioned reckless speed, while out of control." In count 2 plaintiff sought only to recover punitive damages to deter defendants from committing the wrongful acts again and from injuring or damaging other persons on public crossings. Appended to the original petition were prayers for process and service of process, and "that plaintiff have and recover of defendants $7,357.95 (amended to $5,537.95) under count 1," and "that plaintiff have and recover of the defendants $2,500.00 (amended to $4,250.00) under count 2," and that the plaintiff have and recover costs of court. The defendants filed general and special demurrers to each count of the petition and filed an answer and a cross action or counterclaim to which the plaintiff filed general and special demurrers. The plaintiff subsequently amended his petition merely to change the amounts of damages claimed as above indicated. The defendants renewed their demurrers and thereafter twice amended their cross action or counterclaim, and the plaintiff renewed his demurrers and filed additional grounds of demurrer thereto after each amendment. The trial court, in separate orders, overruled the plaintiff's renewed demurrers to the defendants' cross action and overruled the defendants' renewed demurrers to the plaintiff's petition. The jury returned a verdict for the plaintiff on count 1 of his petition for $3,800.89, and on count two for $4,250. Judgment was rendered thereon, and the defendants filed their motion for a new trial on the usual general grounds which they subsequently amended by the addition of five special grounds. The court overruled the motion, and the errors assigned here are on that judgment and on the judgment overruling the demurrers to the petition. By cross bill of exceptions plaintiff has assigned error on the overruling of his demurrers to the defendants' cross action and counterclaim.
1. In their argument before this court respecting their assignment of error on the overruling of their demurrers, counsel for the defendants in error insist only that the general demurrer to count 2 should have been sustained, because they contend that count 2 sets forth and seeks to recover no item of recoverable damages. We think that their contention in this regard is meritorious. It will be seen that the plaintiff's prayers with respect to count 2 only seek recovery of punitive damages alleged in that count. While the allegations of fact contained in count 2 might be sufficient to authorize the recovery under that count for special damages or general damages, even though no amounts thereof are alleged in that count or incorporated therein by reference, there is nowhere in the petition any prayer for general or special damages referable to count 2. It is fundamental that each count in a multi-count petition must be complete within itself and state a complete cause of action. Gaither v. Gaither, 206 Ga. 808, 813 ( 58 S.E.2d 834) and cits. It is equally fundamental that a petition (and for this purpose each separate count must be considered under the foregoing rule as a separate petition) which does not allege and pray for either general, special or nominal damages states no cause of action and is subject to general demurrer. Beverly v. Observer Publishing Co., 88 Ga. App. 490 (2, 3) ( 77 S.E.2d 80); Gartrell v. Afro-American Life Ins. Co., 88 Ga. App. 806 ( 78 S.E.2d 92); Hitchcock Corp. v. Turner, 102 Ga. App. 452 (1) ( 116 S.E.2d 653). Finally, a petition (and in this case count 2) will not be construed as seeking the recovery of any item of damages for which the plaintiff does not pray. Terrell v. McKinny, 26 Ga. 447; Steadman v. Simmons, 39 Ga. 591 (4); Macon c. R. Co. v. Meador Bros., 67 Ga. 672, 675; Georgia R. Bkg. Co. v. Crawley, 87 Ga. 191 (1) ( 13 S.E. 508); Hunnicutt v. Perot, 100 Ga. 312 (1) ( 27 S.E. 787); Thomason v. Moore, 139 Ga. 341 (4) ( 77 S.E. 155); Bennett v. Bagwell Stewart, Inc., 216 Ga. 290, 297 (4) ( 116 S.E.2d 288); Johnston v. Sheppard, 22 Ga. App. 206 ( 95 S.E. 743); Poythress v. Hagan Grocery Co., 31 Ga. App. 611 (1) ( 121 S.E. 864); Shaheen v. Kiker, 105 Ga. App. 692, 696 (3b) ( 125 S.E.2d 541). Under these authorities count 2 of the petition failed to set forth a cause of action, and the trial court erred in overruling the general demurrers thereto.
We think that the general demurrer to count 2 of the petition should have been sustained for a further reason, however. Conduct on the part of the defendants such as to authorize the imposition of punitive or exemplary damages must be wilful or wanton, or so reckless as to evince an entire want of care on the part of the defendants so as to raise a presumption of a conscious indifference to the consequences. Under this doctrine mere negligence can never amount to such aggravating circumstances as to authorize punitive or exemplary damages, and it has been held that the mere failure of the railroad to observe speed laws or to give statutory signals is insufficient standing alone to charge the railroad with wilful and wanton misconduct. Southern R. Co. v. Davis, 132 Ga. 812 (3), 816 ( 65 S.E. 131). Under the foregoing authority, before a railroad will be chargeable with wilful and wanton misconduct it must be shown that its servants knew that their conduct was such that it necessarily would inflict injury, or that they were chargeable with knowledge of facts which, coupled with their conduct, made injury inevitable. As was held in Southern R. Co. v. O'Bryan, 119 Ga. 147, 149 ( 45 S.E. 1000), an intent to inflict an injury must be inferable. To the same effect see Southern R. Co. v. Bankston, 131 Ga. 604 ( 62 S.E. 1027), and American Fidelity c. Co. v. Farmer, 77 Ga. App. 166, 178 ( 48 S.E.2d 122). Properly analyzed, the allegations of wrongful conduct charged against the defendants in count 2 amount to no more than charging that their servants should have so operated the train in approaching the public crossings in Grovetown that they would have been able to bring it to a stop in the event they found persons or objects on the crossings after they rounded the curve 200 yards to the west of the first crossing. While it must be conceded that if these allegations were supported by sufficient evidence, a jury would be authorized to find that the defendants were guilty of common law negligence in so operating the train, the law does not impose an absolute duty on the operators of railroad trains to so run their trains that they will be able to stop them in all events, no matter what gets on the crossing ahead of them and under all circumstances. Atlantic C. L. R. Co. v. Bradshaw, 34 Ga. App. 360 (1) ( 129 S.E. 304); Pollard v. Watkins, 51 Ga. App. 762, 764 ( 181 S.E. 798); Powell v. Carter, 59 Ga. App. 683 ( 2 S.E.2d 191); Georgia Northern R. Co. v. Rollins, 62 Ga. App. 138 (2) ( 8 S.E.2d 114); Atlantic C. L. R. Co. v. Parker, 90 Ga. App. 251, 254 (1) ( 82 S.E.2d 706); Georgia R. Bkg. Co. v. Cook, 94 Ga. App. 650, 652 (3) ( 95 S.E.2d 703); Seaboard Air Line R. Co. v. Hollomon, 97 Ga. App. 16, 22 (5) ( 102 S.E.2d 185); Georgia Southern c. R. Co. v. Haygood, 103 Ga. App. 381, 384 (5) ( 119 S.E.2d 277). As was said in Southern R. Co. v. Davis, 132 Ga. 812, 818, supra, recognizing that questions of wilfulness and wantonness, as well as questions of negligence, are ordinarily for the jury, "it will not do to say that the jury are the judges of whether such conduct exists. They are not the judges of it, where there is no evidence of it. Issues of fact are to be left to the jury, where the pleadings and evidence justify it; but not where there is no evidence authorizing it. There must be something more than the mere proof of failure to give a statutory signal or make a stop required by a statute in approaching a crossing. There must be affirmative evidence of facts tending to show wilfulness, wantonness, or the existence of particular circumstances from which an inference of a conscious indifference to consequences might legitimately be drawn. And these facts must be shown in addition to the mere omission to give statutory signals or take statutory precautions in approaching crossings. If this be not the law, then practically every case of negligent injury can be made the vehicle of submitting to the jury the question of wilfulness and wantonness, by merely using adjectives in describing the character of the negligence." We hold, therefore, that the facts alleged in this case do not authorize the conclusion alleged in count 2 of the petition that the defendants were guilty of wilful and wanton misconduct amounting to a conscious indifference to the consequences so as to authorize the imposition of punitive damages, and the court, therefore, erred in overruling the general demurrer to count 2 of the petition.
2. It is error for the court to charge so as to submit to the jury issues which are neither made by the pleadings nor the evidence. Ellison v. Robinson, 96 Ga. App. 882, 886 (4) ( 101 S.E.2d 902). Under the ruling in Division 1, the pleadings did not authorize a charge submitting to the jury the issue as to punitive or exemplary damages. Conceding, however, as contended by counsel for defendant in error, that evidence, as to the defendants' misconduct proximately causing the plaintiff's damages, showing that the defendants were guilty of numerous acts of negligence and authorizing a finding that the defendants were guilty of gross negligence, was introduced without objection, this evidence, nevertheless, was not sufficient to show that the defendants were guilty of wilful and wanton misconduct amounting to a conscious indifference to the consequences so as to authorize a verdict for punitive or exemplary damages, and the court erred, therefore, in charging so as to submit this issue to the jury as complained of in the first, third and fourth special grounds of the motion for a new trial (grounds 4, 6 and 7). Under this ruling, of course, the fifth special ground (ground 8) of the motion for a new trial contending that the verdict for punitive damages was unauthorized is also meritorious.
3. In his pleadings the plaintiff did not rely upon the failure of the defendant's engineer to keep a sharp lookout along the track ahead or on his failure to constantly toll the bell of the locomotive while within the municipality. However, the evidence was sufficient to raise the issue as to whether he had been negligent in this regard, and the trial court did not err in charging the jury the law with respect to the duty of operators of railroad locomotives to toll the bells of their locomotives when operating them through municipalities. While the general rule is that a charge on legal principles must be adjusted to both the pleadings and the evidence, this rule is qualified in those cases where evidence has been introduced without objection relating to the same cause of action, which evidence could have been authorized by an amendment of the pleadings. Evans v. Henson, 73 Ga. App. 494, 500 (2) ( 37 S.E.2d 164). It is contended in connection with this ground that there was no proof that Grovetown is an incorporated municipality or that any portion of the railroad lies within the municipality. This contention is without merit as the court will take judicial notice of Acts of the legislature, and it is fundamental that corporate charters are granted by legislative enactment. Code § 38-112; Owens v. Rutherford, 200 Ga. 143, 149 ( 36 S.E.2d 309); Davis v. Johnson, 92 Ga. App. 858, 861 ( 90 S.E.2d 426). The fifth ground of the motion for a new trial shows no cause for reversal.
4. In the cross bill of exceptions complaint is made because the court overruled plaintiff's demurrers to the defendants' cross action. However, in the brief of counsel for the plaintiff in error the only issue argued relates to the demurrers to the allegations respecting the negligence of the plaintiff in driving his tractor truck and hauling the house trailer after sunset in violation "of the permit which was issued to him in compliance with Code Section 68-407 of the Code of Georgia, 1933, as amended," which was added as a ground of negligence charged by the defendants in the first amendment to their cross action. Plaintiff demurred to those allegations on several grounds, and defendants thereafter amended their cross action by attaching a copy of the purported permit. It will be noted that the allegations above referred to, which are contained in paragraph 7(a) of the defendants' amended cross action, refer only to the violation of the terms of the permit issued under Code Ann. § 68-407. The first ground of demurrer to these allegations was that they were conclusions, because no rule, regulation, or written instructions issued by a board or bureau of the State of Georgia was pleaded, and the defendants were not entitled to rely thereupon without pleading same. The paragraph demurred to makes no reference to any rule, regulation, or written instruction, and to the extent that the demurrer seeks to invoke or require the defendants to plead such a rule, the first ground of demurrer is a speaking demurrer. The same criticism may be leveled at the third ground of demurrer which attacks the allegation on the ground that there is no requirement of law that a special permit from the "State Highway Department of Georgia" be obtained in such cases. Code Ann. § 68-407, pleaded and relied on by the defendants, relates to permits issued by the Public Service Commission for the moving of vehicles or combinations of vehicles exceeding the length permitted by law, and the demurrer raising the issue as to a permit from the State Highway Department of Georgia, where no such permit had been referred to or pleaded by the defendants as the basis for their cross action, was insufficient to present any question for the court to decide and was properly overruled. A demurrer, being a critic, must itself be free from imperfection and must, as it were, lay its finger upon the very point. This is particularly true of a special demurrer which must point out clearly and specifically the alleged imperfection in the pleading attacked by it. Martin v. Gurley, 74 Ga. App. 642, 643 ( 40 S.E.2d 787).
The other grounds of demurrer attacking this pleading are clearly not meritorious. The defendants subsequently amended to meet the criticism that the length of the combined vehicles was not set forth, and the contention that the defendants were not within the class of persons intended to be protected by the requirement of the law that movement of vehicles of the kind being operated by the plaintiff could be had only between the hours of sunrise and sunset and upon the issuance of a permit by the Public Service Commission is patently without merit. No proper demurrer was filed attacking the cross action on the ground that the permit attached as an exhibit by a subsequent amendment was not one issued pursuant to Code Ann. § 68-407, since it was issued by an official of the State Highway Department and not by the Public Service Commission, if indeed such a showing would subject the defendants' pleading to demurrer. The argument contained in the brief of counsel for the plaintiff in the cross bill in this regard, therefore, presents no question for this court to decide.
Since all of the issues upon which we hold the trial court committed error, as complained of in the main bill of exceptions, relate solely to the issue of punitive damages, and since the jury's verdict for the plaintiff in this respect was in the amount of $4,250, this error can be cured by requiring the plaintiff, before the judgment of this court is made the judgment of the trial court, to write off this amount from the verdict and judgment rendered in this case, and a reversal of the case will not be required. Accordingly, the judgment will be affirmed on condition that this be done, otherwise, the judgment will be reversed.
Judgment on main bill affirmed on condition; affirmed on cross bill. Bell, P. J., and Hall, J., concur.