Opinion
37660, 37661, 37662, 37663.
DECIDED JUNE 24, 1959. REHEARING DENIED JULY 17, 1959.
Action for damages. Savannah City Court. Before Judge Alexander. February 10, 1959.
Hitch, Miller Beckmann, Robert M. Hitch, John E. Simpson, for Midland Properties Co. and Savannah Atlanta Ry. Co.
Oliver, Davis Maner, Edwin Maner, Jr., for Mayor c. of Savannah.
Bouhan, Lawrence, Williams, Levy McAlpin, for Savannah Electric c. Co.
Lewis, Wylly Javetz, John C. Wylly, contra.
The plaintiff's petition set forth a cause of action against each defendant and was subject to none of the special demurrers attacking it. Therefore, the judgment of the trial court overruling all of such demurrers was not error for any reason assigned.
DECIDED JUNE 24, 1959 — REHEARING DENIED JULY 17, 1959.
James David Farmer, by and through his father as next friend, filed suit in the City Court of Savannah to recover for injuries and damages sustained when he came into contact with electricity from a high voltage electric wire. The defendants' demurrers, both general and special, to the petition as amended were overruled and each defendant now excepts to such judgment adverse to it. The petition as finally amended, excluding exhibits, reads as follows:
"Count One. 1. That Midland Properties Company is a Georgia corporation having its office and principal place of doing business in Chatham County, Georgia, and is hereinafter referred to as a defendant. 2. That the Savannah Atlanta Railway Company is a corporation organized and existing under the laws of the State of Delaware, having an office and place of doing business in Chatham County, Georgia, and is hereinafter referred to as a defendant. 3. That the Savannah Electric Power Company is a Georgia corporation having an office and its principal place of doing business in Chatham County, Georgia, and is hereinafter referred to as a defendant. 4. That said defendant, Savannah Electric Power Company, is in the business of producing and distributing electric current and power in Chatham County, Georgia. 5. That The Mayor Aldermen of the City of Savannah is a municipal corporation of the State of Georgia, and is hereinafter referred to as a defendant. 6. That the defendant, Midland Properties Company, is the owner of a certain tract of land in Chatham County, Georgia, known as Whitehall Plantation, which is bounded as follows: On the north by the southern boundary line of lands of Southern Nitrogen Company; on the south by other lands of Midland Properties Company; on the west by the eastern boundary line of Port Wentworth Road; and on the east by the low-water mark of the western bank of the Savannah River. 7. That on the 25th day of March, 1958, the defendant, Midland Properties Company, conveyed to the defendant, The Mayor Aldermen of the City of Savannah, by written instrument a spoil disposal easement in and to the aforedescribed real property. A copy of said easement is hereto attached, marked Exhibit A, and made a part of this petition. 8. That on the 27th of March, 1958, by written instrument, The Mayor Aldermen of the City of Savannah conveyed to the United States of America a spoil disposal easement in and to the aforedescribed tract of land. Copy of said easement is hereto attached, marked Exhibit B, and made a part of this petition. 9. By the terms of the spoil disposal easement of March 25, 1958, from The Midland Properties Company to The Mayor Aldermen of the City of Savannah, the Midland Properties Company agreed to bind itself to provide suitable enclosing dikes, waste weirs and such drainage ditches as may be necessary to discharge water to the river and shall maintain and repair such facilities as may be necessary during the term of this agreement. 10. The spoil disposal easement between The Mayor Aldermen of the City of Savannah and the United States of America, which was executed on March 27, 1958, is by its terms identical with the spoil disposal easement given by the Midland Properties Company to The Mayor Aldermen of the City of Savannah on March 25, 1958, and obligates the city in the same manner that the Midland Properties Company is obligated. 11. On the 16th day of April, 1958, the United States of America entered into a contract with the Hill Dredging Corporation of Atlantic City, New Jersey, to construct a turning basin in the Savannah River opposite the lands hereinbefore described, Whitehall Plantation, and to deposit the spoil from said dredging operation into the spoil disposal area described in the easements as set out in this petition. 12. That the defendant, Midland Properties Company, is a subsidiary of the defendant, Savannah Atlanta Railway Company, which owns all of its capital stock; all of the business and activities of the Midland Properties Company are managed and conducted by said defendant, Savannah Atlanta Railway Company, acting by and through its own offices, servants, agents and employees; the office of said defendant, Midland Properties Company, is the office of the defendant, Savannah Atlanta Railway Company, its offices and employees are those of the Savannah Atlanta Railway Company, which is its active operating agent and managing all of its affairs and acts, all of which are done as subsidiary to and part of the business of said defendant, Savannah Atlanta Railway Company. 13. That the deposit of spoil from said dredging operations on said property was for the benefit and profit of said defendant, Midland Properties Company, and its owner, Savannah Atlanta Railway Company, the same raising the ground level of low land owned by said defendants, thus increasing their value and adding to the wealth of both of said defendants. 14. That the construction of said turning basin the Savannah River was for the benefit and profit of said defendant, The Mayor Aldermen of the City of Savannah. Said defendant regulates the use of the port of Savannah by ships and vessels, defines the harbor lines, has an officer or agent designated as the harbor master to collect prescribed charges and fees for services rendered by him or his assistants to vessels and cargoes in the port of Savannah, which charges and fees are part of the income of said defendant. 15. The said construction of said turning basin was designed to facilitate movement and traffic of vessels and ships in the port of Savannah, to increase traffic in the same, thereby to increase the income from such traffic of said defendant. 16. That in April and May, 1958, prior to May 11, 1958, the exact dates being unknown to petitioner, said defendant, Midland Properties Company, acting by and through the servants, agents and employees of its owner, the defendant, the Savannah Atlanta Railway Company, constructed on its said land enclosing dikes, waste weirs and drainage ditches, necessary conditions precedent to the dredging operations in performance of said contract and the resulting filling and improving of the lands of said defendants. 17. That said servants, agents and employees of the said defendants, whose names are unknown to the plaintiff, but well known to the defendants, knew the purpose for which the weirs and ditches were constructed and knew that the elevation of the lands would be raised by the depositing of spoil thereon. 18. On or about the 10th day of May, 1958, the exact date being unknown to petitioner, said servants, agents and employees were informed by the superintendent of said Hill Dredging Corporation that there were low areas in the dike paralleling the Savannah River and that it would be necessary to repair and strengthen said low area in order that the dike would hold the dredging spoil upon the lands of the said defendants; which repairs were made by said servants, agents and employees of said defendants, whose names are unknown to petitioner. Said servants, agents and employees of said defendants at said time instructed the superintendent and other employees of Hill Dredging Corporation as to where to place the fill and the depth to which the fill should be placed on said property of said defendants. 19. That on the 29th day of March, 1933, W. Lathrop Hopkins, a predecessor in title to the aforedescribed real property, conveyed to the Savannah Electric Power Company by written instrument an easement to construct and maintain an electric transmission and distribution system over and across the hereinbefore described lands. Said document was recorded in the records of the Clerk of the Superior Court of Chatham County, Georgia, on the 3rd day of April, 1933 in Record Book 28 W's, Folio 302. Copy of said easement is hereto attached, marked Exhibit C, and made a part of this petition. 20. That the Savannah Electric Power Company in pursuance of the said easement constructed a power line for the transmission of electricity across the aforedescribed real property. That in the area which subsequently became the spoil disposal area described in this petition, it erected two (2) wooden poles three hundred twenty (320) feet apart, the poles being approximately twenty-one (21) feet in height above the natural ground as it existed prior to the pumping of fill into the area. 21. That the two (2) poles had cross-arms for the support of wires located approximately one (1) foot from the tops of the poles. The power line attached to the cross-arms is a single-phase distribution line consisting of one phase conductor and one neutral conductor. The power conductor is a seven (7) strand number 4 bare copper conductor, without insulation. 22. The voltage between these conductors is twenty-three hundred (2300) volts. 23. These power lines or conductors sagged to within six feet three inches (6' 3") of the ground level. 24. That after the area in question was filled, these lines or conductors, sagged to within two feet three inches (2' 3") of the ground as it existed after the fill had been introduced to the area, on June 14, 1958, the date that the plaintiff received the injuries hereinafter complained of. 25. That the installation of a high voltage electric line at said time and place, with a clearance beneath said line to the ground of less than fifteen (15) feet, was grossly negligent. 26. Said area is adjacent to the Savannah River, and in the midst of a highly industrialized section of Chatham County, abutting the State Docks property. It is between two (2) roads leading from Port Wentworth Road, or U.S. Highway 17, to the river. It had been used as a pasture. It was a likely place for hunters. By reason of all these facts, it was a place likely to be used and traversed by pedestrians. 27. [stricken by amendment]. 28. By reason of the herein alleged facts, said sagging electric line at said place on June 14, 1958, and prior thereto, constituted a deadly mantrap. 29. All of the defendants knew that personnel and equipment from the dredge of Hill Dredging Corporation would be required to go upon said land in the performance of the work under said contract. 30. By reason of the foregoing facts, all of the defendants invited the employees of said Hill Dredging Corporation to go upon said land in the performance of the work under said contract and to pass under said naked and dangerous high tension electric wire. 31. On the 11th day of May, 1958, Hill Dredging Corporation stationed the Dredge `Ventnor' opposite Whitehall Plantation in the Savannah River and its employees commenced to set out her pipelines and all of the other mechanism necessary to commence the work of dredging the turning basin, all in preparation to the removal and pumping from the bed of the Savannah River into the aforesaid disposal area a million cubic yards of fill. 32. The presence of the dredge and the purpose for which it established itself opposite Whitehall Plantation was well known to all of the defendants. 33. The work of dredging and extending the pipelines continued uninterrupted until the 14th day of June, 1958, and the presence of the dredge and its crew was known to all of the defendants. 34. That on the 14th day of June, 1958 at approximately 5:30 p. m. o'clock, petitioner was an employee of the Hill Dredging Corporation and a member of the crew of the Dredge `Ventnor', which is owned by the Hill Dredging Corporation. 35. That on the said date and time, the pipeline from the Dredge `Ventnor' through which the spoil was being pumped from the bed of the Savannah River had reached a point approximately three hundred twenty-five (325) yards in the spoilage area from the west bank of the Savannah River. At this point, the end of the pipeline was in close proximity to the hereinbefore described electric line of the defendant, the Savannah Electric Power Company. 36. That the pipe in question is twenty (20) or twenty-one (21) inches in diameter and each section of the pipe weighs in excess of one thousand (1,000) pounds. 37. Petitioner shows that he was working in a crew of five (5) people who were gradually extending the pipeline as the area filled. 38. Petitioner did not know that said power line was charged with dangerous electricity. The copper wires had corroded and had the appearance of galvanized iron wire. The close proximity of said wires to the ground as it existed on June 14, 1958, indicated to petitioner that the line was old and abandoned. There was nothing about the wires or the surrounding area to warn petitioner that the wires in question carried twenty-three hundred (2300) volts of electricity. There was nothing about the wires to indicate to petitioner that there was any danger connected with them. 39. Petitioner, together with the other members of his working party, were in the process of hanging or attaching a fifteen (15) foot length of pipe to the pipeline so that the line would be thus extended. 40. The persons working with petitioner were David Evans, Jr., Aaron Kennedy, Hoyal V. Vernam and Clyde Dozman. 41. That by the use of logs and other pieces of timber found in the area, this crew was trying to manhandle said pipe section into place so as to fasten it onto the already existing pipeline. 42. Aaron Kennedy was on the extreme end of the pipe nearest to the dangerous electrically charged wires. As the pipe was moved into proper alignment with the then existing pipeline, Aaron Kennedy came in contact with one of the deadly high tension wires. 43. Large electrical sparks were emitted from the wire and Kennedy fell across the wires, one burning its way six (6) inches through his neck, and he was thus instantly killed. 44. A portion of Kennedy's legs and body fell across the legs of petitioner and twenty-three hundred (2300) volts of electricity proceeded to pass from the wire through Kennedy's body, through the legs and body of petitioner, thus burning and injuring petitioner's legs so that amputation of one leg was necessary as hereinafter set out and described. 45. Petitioner shows that he was working next to Kennedy on one side of the pipe when the foregoing occurred, and that David Evans, Jr., was on the other side of the pipe next to Kennedy, with the result that when Kennedy in falling touched Evans, electricity passed through Evans' left arm burning him from the wrist to the elbow on his left arm. 46. Petitioner shows that his fellow crewmen, by the use of a shovel, the wooden handle of which acted as an insulator, were able to pull him from under Kennedy, thus disengaging him from the high voltage current which was passing through his legs and body. 47. That petitioner, while thus dangerously injured, lay in the mud for a period of approximately (1) hour until he could be removed from the area by means of a stretcher and then by ambulance to the Memorial Hospital of Chatham County in the City of Savannah. 48. Petitioner shows that on the night of June 14, 1958, he was attended at Memorial Hospital by Doctor Robert B. Gottschalk. 49. Examination of petitioner at that time revealed that he had received a burn on the left leg between the knee and ankle. The burned area was approximately four by six (4 x 6) inches and the area was white. This tissue was completely dead. 50. A careful examination revealed that the calf muscles in this leg were hard. This indicated that the entire muscles on the posterior surface of the leg were cooked by the electrical charge and that the leg itself was dead. 51. The afore described injury indicated immediate amputation of this leg to preserve the petitioner's life. 52. In addition to the severe burn to the left leg, petitioner had a burn under the dorsum of the right foot as well as two (2) burned areas on the surface of the left thigh. 53. Petitioner shows that as soon as arrangements could be made and consent for amputation had, the operating room was readied as quickly as possible and amputation was performed the same evening, the left leg being amputated above the knee. The burned foot necessitated a skin graft which was applied to the dorsum of the right foot and over the dorsum of the toes. 54. Petitioner shows that he remained in said hospital until the 31st day of July at which time he was able to leave the hospital and go to the home of his brother, John Franklin Farmer, Jr., in Hardeeville, South Carolina, where he is now recuperating. 55. Petitioner alleges that his said injury and damages were directly and proximately caused by the gross negligence of all of the defendants, which concurred in causing said injury and damages. 56. Said The Mayor Aldermen of the City of Savannah were negligent: (a) In failing to provide a proper and safe disposal area in accordance with the terms of the said spoil disposal easement of March 27, 1958, petitioner being on said land by invitation of said defendant, as hereinabove set forth. (b) In failing to make a proper inspection of said premises, knowing that petitioner and other employees of Hill Dredging Corporation would be required to go upon said land. (c) Defendant was negligent in permitting high voltage, uninsulated electric wires to remain on said premises, as hereinbefore set forth, and in failing to have the same disconnected or removed before inviting petitioner to go upon said land. 57. Said Midland Properties Company was negligent: (a) In failing to provide a proper and safe disposal area in accordance with the terms of the said spoil disposal easement of March 25, 1958, petitioner being on said land by invitation of said defendant, as hereinabove set forth. (b) In failing to make a proper inspection of said premises, knowing that petitioner and other employees of Hill Dredging Corporation would be required to go upon said land. (c) Defendant was negligent in permitting high voltage, uninsulated electric wire to remain on said premises, as hereinbefore set forth, and in failing to have same disconnected or removed before inviting petitioner to go upon said land. 58. Said Savannah Atlanta Railway Company was negligent: (a) In failing to provide a proper and safe disposal area, which, as the operating agent, manager and owner of said Midland Properties Company it undertook to do, as hereinabove set forth. (b) In failing to make a proper inspection of said premises, knowing that petitioner and other employees of Hill Dredging Corporation would be required to go upon said land. (c) Defendant was negligent in permitting high voltage, uninsulated electric wires to remain on said premises, as hereinabove set forth, and in failing to have the same disconnected or removed before inviting petitioner to go upon said land. 59. That the defendant, Savannah Electric Power Company, was negligent: (a) In installing said power line with a voltage of twenty-three hundred (2300) volts between the conductors in such manner that said line was less than fifteen (15) feet above the ground level. (b) In constructing said electrical power lines so that the same sagged to within six feet three inches (6' 3") of the ground level, by reason of too long a span between the said poles, to wit: A span of three hundred twenty (320) feet, thereby permitting said high voltage electric line to sag as herein set forth, constituting a deadly mantrap. (c) In failing to inspect said installation in order to prevent the highly dangerous condition which resulted in the injuries and damages to petitioner. (d) In failing to disconnect said power line before work under said dredging contract had begun. 60. Petitioner shows that at said time and place he was at a place where he had a right to be and that he did not contribute in any manner to his injuries. 61. Plaintiff shows that immediately prior to the time of the injuries complained of, he was a young man, eighteen (18) years old and in vigorous health. That as a result of the gross, wilful, wanton negligence of the defendants, he had been rendered a cripple for the remainder of his natural life. That as the direct result of said negligence, he has suffered physical and mental pain for the remainder of his natural life, that he will be incapacitated from earning a livelihood; for which injuries and damages petitioner seeks general damages in the sum of five hundred thousand ($500,000) dollars. 62. Petitioner shows that the conduct of all of the defendants in permitting this high tension electric line to remain within close proximity to the ground in the area in question amounted to a wanton disregard for the safety of others. Said defendants had actual knowledge that the manner in which said improper installation was permitted to remain was almost positively to result in the electrocution or serious injury to the members of the public passing that way and to members of the crew of the Dredge `Ventnor,' who had to go into the vicinity of the high voltage low hanging electric wires, and that with this knowledge, the defendants, with utter disregard of the consequences, permitted the area in question to be prepared for the receipt of the spoil without correcting the dangerous condition then existing by reason of the low hanging wires. The concurrent actions of the defendants were wilful and wanton and showed an utter disregard for the safety of the public and the lives of the men who had to go into the area for which gross negligence this petitioner seeks punitive damages against said defendants in the additional sum of two hundred thousand ($200,000) dollars. 63. That the statutory notice to The Mayor Aldermen of the City of Savannah required by law was given by a letter July 11, 1958, a copy of which marked Exhibit D is hereto attached and made a part hereof. Wherefore, petitioner prays that he have judgment against the defendants, Midland Properties Company, Savannah Atlanta Railway Company, Savannah Electric Power Company and The Mayor and Aldermen of the City of Savannah, for general damages in the sum of five hundred thousand dollars, and judgment for punitive damages in the sum of two hundred thousand ($200,000) dollars, making a total amount for which judgment is prayed in the sum of seven hundred thousand ($700,000) dollars, and that process issue requiring the defendants to be and appear at the next term of this Honorable Court to answer petitioner's complaint.
"Count Two. 1. Petitioner adopts as allegations of count two of this petition the allegations in the following paragraphs of count one of this petition, to wit: The allegations in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, which by express reference, are hereby made a part hereof. 56. That on or about the first day of May, 1958, the exact date being unknown to the petitioner, the servants, agents, and employees of the Savannah Atlanta Railway Company, acting in behalf of the Midland Properties Company, notified the Savannah Electric Power Company that the aforesaid area would be filled and requested that the electricity be disconnected at the transformer nearest the fill area so that the electric lines crossing the area would be safe and free from electricity. 57. That the Savannah Electric Power Company ignored the aforesaid request and permitted the dangerous condition to continue. For want of sufficient information, petitioner cannot allege the name of the individual who gave said notice nor the name of the individual to whom said notice was given, this information being peculiarly within the knowledge of the defendants. 58. That the servants, agents and employees of the Savannah Atlanta Railway Company failed to pursue the request that the electricity be discontinued and permitted the crew from the dredge to enter the dangerous area without warning or notice of the danger then existing, which danger was well known to all of the defendants but not known to the members of the crew of the Dredge `Ventnor' or to this plaintiff. 59. Plaintiff adopts the allegations in paragraphs 56 (a), (b) and (c) of count one and, by express reference, makes the same a part hereof. 60. Plaintiff adopts the allegations in paragraphs 57 (a), (b) and (c) of count one and, by express reference makes the same a part hereof. (d) Defendant, Midland Properties Company, was negligent in not pursuing the request of the Savannah Electric Power Company that the electric current be discontinued in the spoil area. (e) The defendant, Midland Properties Company, was negligent in that it failed to warn the crew of the Dredge `Ventnor' and the plaintiff of the danger existing in the spoil area. 61. Plaintiff adopts the allegations in paragraphs 58 (a), (b) and (c) of count one and, by express reference, makes the same a part hereof. (d) Defendant, Savannah Atlanta Railway Company, was negligent in not pursuing the request to the Savannah Electric Power Company that the electric current be discontinued in the spoil area. (e) The defendant, Savannah Atlanta Railway Company, was negligent in that it failed to warn the crew of the Dredge `Ventnor' and the plaintiff of the danger existing in the spoil area. 62. Plaintiff adopts the allegations in paragraphs 59 (a), (b) and (c) of count one and, by express reference, makes the same a part hereof. (d) In failing to disconnect said power line before work under said dredging contract began, although, having been notified, informed and instructed to do so, as hereinabove set forth. 63. Plaintiff adopts the allegations in paragraphs 60, 61, 62, 63 of count one, and by express reference, makes the same a part hereof. Wherefore, petitioner prays that he have judgment against the defendants, Midland Properties Company, Savannah Atlanta Railway Company, Savannah Electric Power Company and The Mayor Aldermen of the City of Savannah, for general damages in the sum of five hundred thousand ($500,000) dollars, and judgment for punitive damages in the sum of two hundred thousand ($200,000) dollars, making a total amount for which judgment is prayed in the sum of seven hundred thousand ($700,000) dollars, and that process issue requiring the defendants to be and appear at the next term of this Honorable Court to answer petitioner's complaint.
"Count Three. 1. Petitioner adopts as allegations of count three of this petition the allegations in the following paragraphs of count one of this petition, to wit: The allegations in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, which by express reference, are hereby made a part hereof. 56. Said defendant The Mayor Aldermen of the City of Savannah, failed and neglected to notify the defendant, the Savannah Electric Power Company, to disconnect the electricity in said line before work under the said contract began. 57. Said defendant, Midland Properties Company, failed and neglected to notify the defendant, the Savannah Electric Power Company, to disconnect the electricity in said line before work under said contract began. 58. That said defendant, Savannah Atlanta Railway Company, failed and neglected to notify the defendant, the Savannah Electric Power Company, to disconnect the electricity in said line before work under said contract began. 59. Plaintiff adopts the allegations in paragraphs 57 (a), (b) and (c) of count one and by express reference, makes the same a part hereof. (d) Defendant was negligent in failing and neglecting to notify the Savannah Electric Power Company to disconnect the electricity in said power line. 60. Plaintiff adopts the allegations in paragraphs 60, 61, 62, 63 of count one and by express reference, makes the same a part hereof. Wherefore, petitioner prays that he have judgment against the defendants, Midland Properties Company, Savannah Atlanta Railway Company, Savannah Electric Power Company and The Mayor Aldermen of the City of Savannah, for general damages in the sum of five hundred thousand ($500,000) dollars, and judgment for punitive damages in the sum of two hundred thousand ($200,000) dollars, making a total amount for which judgment is prayed in the sum of seven hundred thousand ($700,000) dollars, and that process issue requiring the defendants to be and appear at the next term of this Honorable Court to answer petitioner's complaint." The exhibits referred to in the petition will not be quoted but will be referred to when necessary in the decision of the cases.
1. The Savannah Electric Power Company demurred specially to paragraphs 7 and 8 of the plaintiff's petition because the exhibits therein referred to themselves referred to a plat being attached and as being on file in the records of the Clerk of the Superior Court of Chatham County, Georgia, which plat was not attached to the exhibit. The basis of this demurrer is that without the plat being attached the location of the place where the injuries occurred could not be determined. The description contained in the exhibits did not describe the property by metes and bounds but only as to what lands bounded the property covered by the easements. While such exhibits did not expressly locate the scene where the plaintiff was injured (See McDilda v. Lankford, 213 Ga. 773 (2) 102 S.E.2d 41), when such exhibits are considered in connection with the remainder of the allegations of the petition, the area was sufficiently described so as to place this defendant on notice as to the location where the injuries were sustained without the plats being attached to the exhibits, and the demurrers were properly overruled.
2. All the defendants demurred to the allegations contained in paragraph 11 because it was not alleged whether the contract between the plaintiff's employer and the United States of America was oral or written.
It is too well settled to require citation of authority that when a cause of action is based on a contract it is necessary for the plaintiff to either plead the terms of the contract or to attach such contract as an exhibit to the petition. In the present case the plaintiff's cause of action is not based upon the contract between the plaintiff's employer and the United States of America, but on the contrary is based, as to the Savannah Electric Power Company, on the maintenance of a "mantrap," and as to the other defendants upon the obligations arising under the spoil disposal easements, either as principal or agent. The terms of the contract, other than the terms actually pleaded could in no wise have any effect on the defendants for they were not parties to such contract. Accordingly, these grounds of demurrer are without merit, since the terms of the contract necessary to the case sub judice were pleaded.
3. Midland Properties Company demurred specially to the allegations of paragraphs 12 and 13 because of the reference therein to its parent corporation, Savannah Atlanta Railway Company, since each corporation is a separate legal entity.
Paragraph 12 of the petition, in its final analysis, alleged that the parent corporation acted as the agent of the subsidiary corporation, and that all of the acts, in connection with the present action, of the subsidiary corporation were done by the parent corporation for the benefit of both corporations. Accordingly, these grounds of demurrer were without merit.
4. The special demurrers filed by Midland Properties Company to paragraphs 16, 17, and 18 which attack such allegations as being conclusions of the pleader, irrelevant and immaterial to the petition, are without merit in view of all the allegations of the petition. The acts leading up to the plaintiff's injuries are not immaterial, nor are the averments of ultimate fact conclusions of the pleader. "It is evident that the effect of the special demurrer here under consideration was to require the plaintiff in error to plead his evidence. This he is not required to do. `Good pleading requires only that the plaintiff plainly and concisely state the material ultimate facts upon which she depends for a recovery. As a general rule, the evidentiary facts upon which the plaintiff relies to prove the ultimate facts need not and should not be set forth in the pleadings.' Lefkoff v. Sicro, 189 Ga. 554 (10) ( 6 S.E.2d 687, 133 A.L.R. 738)." Tanner v. National Cas. Co., 214 Ga. 705 (1b) ( 107 S.E.2d 182). The allegations here complained of allege ultimate facts and not conclusions of the pleader.
5. Savannah Electric Power Company demurred specially to paragraph 25 of the petition because the allegations therein that such defendant was grossly negligent in installing the high voltage electric line so that it hung within 15 feet of the ground was a conclusion.
In Welch v. City of Camilla, 86 Ga. App. 609, 617 ( 72 S.E.2d 83), it was said: "Suppose the defendant, or any power company, should string such wires [high voltage electric wires] 10 feet above the level of the ground, would we not say at once that it should have anticipated that in the ordinary course of human events, considering the various objects carried by people, the various vehicles, etc., which would come within the ambit of the wires, that someone might be brought into contact with such wires strung at such a height." In Central of Ga. Ry. Co. v. Pelfry, 11 Ga. App. 119, 123 ( 74 S.E. 854), it was said: "One may be convicted of murder even where he did not intend to kill, and even where he had no malice against the person killed. He may recklessly shoot into a crowd, intending merely to frighten, and kill a man whom he has never seen and against whom he has no ill will; but the homicide would be murder. And so, if an engineer should see one lying on the track in an apparently helpless condition, he would have no right to assume that the person would leave the track in time to save himself. To run him down under such circumstances would be such gross negligence and recklessness as would amount in law to wantonness." Since the questions of negligence and the degree of negligence are questions for the jury's determination except in palpably clear cases, under all the allegations of the petition this court cannot say as a matter of law that placing the wire so that it was less than 15 feet above the level of the ground was not gross negligence and that the allegation was a bare conclusion. Accordingly, the trial court did not err in overruling this ground of demurrer. See also Lassiter v. Poss, 85 Ga. App. 785, 787 ( 70 S.E.2d 411).
6. Savannah Atlanta Railway Company, Midland Properties Company and Savannah Electric Power Company all demurred specially to paragraph 26 of the petition. These demurrers were based on the premise that it was not alleged whether the two roads were public or private, when the area was used as pasture, why the area was a likely place for hunters and why it was a likely place to be traversed by pedestrians. "The office of the special demurrer in this State is to point out defects in the petition as to matters of form and to point out irrelevant and ambiguous matter, and to require the pleader to make his pleading more certain and as to a bill, petition or declaration to require the plaintiff to set out his alleged cause of action and grievance against the defendant with such definiteness, clarity and particularity as to enable the defendant to know the exact nature of the complaint against it and to prepare itself to defend against the charges made. A petition does not have to go into minute detail and the pleader is not required to set out his evidence in the petition. Reasonable definiteness and certainty is all that should be required, even though the attack is made by special demurrer, and other demands by special demurrer should not be encouraged. Southern Ry. Co. v. Lunsford, 50 Ga. App. 829, 833 (3) ( 179 S.E. 571); Charleston c. Ry. Co. v. Attaway, 7 Ga. App. 231 (2) ( 66 S.E. 548). While conclusions should not be alleged as a basis for recovery the same are not demurrable where there are facts alleged to support them, even though they appear in other parts of the petition. Furr v. Burns, 124 Ga. 742 (5) ( 53 S.E. 201); Western Union Telegraph Co. v. Harris, 6 Ga. App. 260 ( 64 S.E. 1123)." Georgia, Southern c. Ry. Co. v. Williamson, 84 Ga. App. 167, 175 ( 65 S.E.2d 444). The allegations of the petition here demurred to dealt with facts peculiarly within the knowledge of the demurring defendants. "Many facts, especially those resting peculiarly within the knowledge of the opposite party, may be alleged in general terms." Cedartown Cotton c. Co. v. Miles, 2 Ga. App. 79, 81 ( 58 S.E. 289). See also Beebe v. Smith, 76 Ga. App. 391, 403 ( 46 S.E.2d 212). The information sought by these special demurrers, the use put to the land under the control of the demurring defendants, was peculiarly within the knowledge of these defendants, and the general allegations in the petition were not subject to demurrer.
7. The defendants separately filed special demurrers to some or all of the following paragraphs of the petition: 28, 29, 30, 32 and 33. These demurrers were on the ground that the allegations contained in such paragraphs were conclusions of the pleader.
Each of these paragraphs alleged ultimate facts and not conclusions of the pleader as contended by the defendants. "`Reasonable definiteness and certainty in pleading is all that is required; and factitious demands by special demurrer should not be encouraged.' Busby v. Marshall, 3 Ga. App. 764 ( 60 S.E. 376). `The special demurrer is rapidly outliving its usefulness. The law looks at substance rather than form. The legitimate function of a special demurrer is to compel the pleader to disclose whether he really has a cause of action or defense. The requirement (of Code § 81-101) that a plaintiff shall "plainly, fully, and distinctly" set forth his ground of complaint does not mean that he shall disclose the evidence upon which he relies, or indulge in needless particularity, but means only that his demand shall be set forth in terms sufficiently full and distinct to enable the court to determine whether a cause of action exists, and his adversary to understand the exact nature of the claim made against him.' Fuller v. Inman, 10 Ga. App. 680, 693 (3) ( 74 S.E. 287)." Alford v. Zeigler, 65 Ga. App. 294, 297 ( 16 S.E.2d 69). Accordingly, the demurrers to these paragraphs of the petition were properly overruled.
8. The special demurrer of the defendant, Savannah Electric Power Company, to paragraph 38 of the plaintiff's petition is based on the premise that the allegations as to the appearance of the high voltage wire, that due to corrosion it appeared to be a galvanized iron wire, is contrary to the laws of science, is without merit, for while this court will take judicial notice that copper, when exposed to air, will corrode, it cannot take judicial notice that under no circumstances will corroded copper wire not appear to the untrained eye to be galvanized iron wire.
As to the contention that allegations of this paragraph of the petition were conclusions, it was said in Planters Electric Membership Corp. v. Burke, 98 Ga. App. 380, 388 ( 105 S.E.2d 787), "The very fact that the defendant power company strung wires in an uninsulated state, one within 10 feet and the other 12 feet of the ground across the barnyard of another indicated that the wires were harmless." Here the wires were strung within six feet three inches of the ground, and this fact alone was sufficient to support the allegation that there was nothing about the wires to indicate to the plaintiff that there was any danger connected with them.
9. The defendant Savannah Atlanta Railway Company demurred to paragraph 41 of the petition because the allegations contained therein were immaterial and irrelevant to the cause of action. "`A demurrer, being a critic, must itself be free from imperfection. It must lay its finger, as it were, on the very point. (Citing.) A demurrer which fails to point out wherein a particular allegation is irrelevant, immaterial, prejudicial, not germane or impertinent, or does not constitute issuable facts, or states erroneous conclusions of law, or which does not point out wherein or how the petition is multifarious or contradictory, is altogether too vague and general to be considered by this court.' Gay v. Healan, 88 Ga. App. 533, 537 ( 77 S.E.2d 47)." Glens Falls Indem. Co. v. Canal Ins. Co., 93 Ga. App. 588 ( 92 S.E.2d 580). Accordingly, such ground of demurrer was properly overruled.
10. Savannah Atlanta Railway Company, demurred specially to paragraphs 43, 45 and 46, Midland Properties Company demurred specially to paragraphs 45 and 46, and Savannah Electric Power Company demurred to paragraph 45 of the petition on the grounds that the allegations contained therein were immaterial, irrelevant and prejudicial to them.
While these grounds of demurrer are controlled adversely to the movants by Glens Falls Indem. Co. v. Canal Ins. Co., 93 Ga. App. 588, supra, and there was no error in the judgment of the trial court overruling such demurrers for such reason; however, since the allegations of the petition contained in these paragraphs of such petition dealt with the history of the plaintiff's injuries and how they occurred and the mere fact that the injuries suffered by others in the same occurrence are alleged in connection with such history would not make all the allegations of the history of the occurrence subject to demurrer.
11. Savannah Electric Power Company, in one demurrer, demurred specially to paragraphs 48 through 54 of the petition because such paragraphs plead evidence and are therefore prejudicial, superfluous and irrelevant. Savannah Atlanta Railway Company and Midland Properties Company demurred specially to paragraphs 49 and 50 because it is not alleged when, where and by whom the examinations of the plaintiff were made, and to paragraph 51 because it is not alleged to what person or the time and place that the injury indicated that immediate amputation was necessary to save the plaintiff's life.
As to the demurrers of the defendants, Midland Properties Company and Savannah Atlanta Railway Company, a reading of paragraphs 48 through 54 shows that the incidents referred to in the paragraphs demurred to (paragraphs 49, 50, and 51), took place in the Memorial Hospital of Chatham County immediately following the plaintiff's admission there on June 14, 1958, and that Doctor Robert B. Gottschalk was the physician who made the various diagnoses referred to in the paragraphs of the petition attacked by such demurrers.
The demurrer to paragraphs 48 through 54 of the petition was based on the ground that such allegations pleaded evidence. "Where a paragraph . . . contains both relevant and irrelevant matter, it will be purged of the irrelevant matter on special demurrer pointing out such irrelevancy; but if the demurrer goes to the paragraph as a whole, without specifying the irrelevant matter, the demurrant can not complain that the entire paragraph . . . is not stricken. Southern Ry. Co. v. Phillips, 136 Ga. 282 ( 71 S.E. 414)." Wardlaw v. Frederick, 13 Ga. App. 594 (2) ( 79 S.E. 523). See also Atlanta Journal Co. v. Doyal, 82 Ga. App. 321 ( 60 S.E.2d 802). Accordingly, regardless of what other paragraphs attacked in the one demurrer alleged, paragraph 52 which alleged that the plaintiff suffered specified injuries was not subject to demurrer on the ground that it pleaded evidence, and the judgment of the trial court refusing to strike all of the paragraphs of the petition attacked by the one demurrer was not error.
12. Savannah Electric Power Company and The Mayor Aldermen of the City of Savannah demurred to paragraph 55 of the petition on the ground that the allegations contained therein were conclusions of the pleader.
The attack of The Mayor Aldermen of the City of Savannah to this paragraph of the petition was included in one ground of demurrer which also attacked paragraphs 29 and 30 of the petition. Under the authority cited in division 11 of this opinion this demurrer was properly overruled since the attack on paragraphs 29 and 30 of the petition was without merit.
As to the Savannah Electric Power Company, the allegations unsuccessfully attacked by special demurrer and dealt with in division 5 of the opinion show that the averments contained in the paragraph here attacked were not conclusions unsupported by well pleaded facts, and therefore, the trial court did not err in overruling such ground of demurrer.
13. Each defendant demurred specially to the allegations of negligence charged to it in paragraphs 56 through 59 of the petition on the grounds that such allegations of negligence were conclusions and vague and indefinite. These allegations of negligence, when considered in connection with the other allegations of the petition which have been held not to be subject to the defendants' special demurrers, are neither conclusions of the pleader nor so indefinite and vague as to be subject to special demurrer. Accordingly, the trial court did not err in overruling such special demurrers.
14. Each defendant demurred to the allegations of counts 2 and 3 of the petition which were adopted from count 1 on the same grounds of demurrer as were directed toward count 1 of the petition, and such demurrers are therefore controlled by the above rulings adverse to the defendants' contentions. Accordingly, only the demurrers to the additional allegations of counts 2 and 3 will be dealt with in detail.
15. Savannah Electric Power Company demurred specially to paragraphs 56, 57 and 62 (d) of count 2 of the petition on the grounds that such allegations of the pleader were conclusions unsupported by alleged facts. The ultimate facts to be proved under such allegations were that notice was given that the area was to be filled, that the defendant Savannah Electric Power Company ignored this notice as well as the request to disconnect the electricity at the transformer. These ultimate facts were alleged, and under the decision of the Supreme Court in Tanner v. National Cas. Co., 214 Ga. 705 (1b), supra, the trial court did not err in overruling the defendant's demurrer.
16. Both Savannah Atlanta Railway Company and Midland Properties Company demurred to the allegations of paragraph 56 of count 2 because each of these defendants was a separate legal entity, and Savannah Atlanta Railway Company demurred specially to paragraph 58 of count 2 of the petition on the grounds that it was not a party to the contracts referred to in the plaintiff's petition, that it was under no duty to the plaintiff, and that the allegations contained therein were conclusions of the pleader. These grounds of demurrer are controlled adversely to the demurrants by the ruling in the third division of this opinion inasmuch as the allegations in the last analysis were that the Savannah Atlanta Railway Company was acting as the agent of Midland Properties Company. Accordingly, these grounds of special demurrer, as well as the demurrers to the allegations of negligence based thereon were properly overruled.
17. The Mayor Aldermen of the City of Savannah demurred specially to paragraph 56 of count 3 of the petition and contend that such paragraph is vague and indefinite. This paragraph of count 3 alleged that his defendant failed to notify the defendant Savannah Electric and Power Company to disconnect the electricity in the power line before work was begun in the area. Such allegation of the petition was the allegation of an ultimate fact to be proved on the trial of the case, and under the decision of the Supreme Court in Tanner v. National Cas. Co., 214 Ga. 705, supra, was not subject to the objection made by this ground of special demurrer.
18. As has previously been observed, the Savannah Atlanta Railway Company was acting as the agent of Midland Properties Company at the times referred to in the petition, and, while each of these corporations is a separate legal entity and the acts of one corporation, although a totally owned subsidiary of the other, are not chargeable to the other (see Hollingsworth v. Georgia Fruit Growers, 185 Ga. 873, 875, 196 S.E. 766, and citations), where as here one corporation acts as the agent for the other, and such agent is guilty of misfeasance rather than mere nonfeasance, both corporations may be sued for the alleged tortious act in the same action. See Graham v. Raines, 83 Ga. App. 581 (3) ( 64 S.E.2d 98) and Sharp-Boylston Co. v. Bostick, 90 Ga. App. 46, 48 ( 81 S.E.2d 853), and citations. Accordingly, in the present case where, as shown in the 19th division of this opinion, the alleged acts of the defendant railroad as agent for the defendant Midland Properties Company amounted to misfeasance rather than nonfeasance, the demurrers of the defendant railroad on the ground that it was a separate legal entity from Midland Properties Company were properly overruled.
19. The property where the plaintiff was injured was owned by Midland Properties Company, which corporation granted an easement to The Mayor Aldermen of the City of Savannah for a valuable consideration. The Mayor Aldermen of the City of Savannah then granted a like easement to the United States of America for a valuable consideration. Each of these grantors agreed to construct enclosing dikes and other improvements to be approved by the grantees, and each grantor reserved "all rights and privileges in said tract of land as may be used and enjoyed without interfering with or abridging the rights and casements hereby conveyed to the grantee." Therefore, neither the defendant Midland Properties Company nor the defendant The Mayor Aldermen of the City of Savannah, under the easements granted by them surrendered the entire possession of the premises, nor under the further terms of the easements could they, for it was their further duty to do any grading or ditching necessary to prevent the ponding of water on the property covered by the easements. Both of these defendants, under the terms of the easements, were "owners or occupiers" of land who are required by Code § 105-401 to exercise ordinary care to keep their premises and approaches safe for use by invitees, and under the decision of this court in Fulton Ice Coal Co. v. Pece, 29 Ga. App. 507 ( 116 S.E. 57), these defendants owed the plaintiff the duty of warning him of the danger of the uninsulated high voltage wire, and this is especially true where these defendants were required, under the easements, to construct enclosing dikes, etc., and these enclosing dikes were constructed so that they would bring the level of the ground to within two feet three inches of such high voltage wires. These defendants were required under the easements to provide the facilities for the reception of the waste, and if in providing the facilities they were negligent by providing facilities which were not safe, such omission to provide safe facilities would amount to misfeasance and not, as contended by their codefendant Savannah Atlanta Railway Company, nonfeasance, inasmuch as they did undertake to provide the facilities. Accordingly, count 1 of the petition set forth a cause of action against these defendants.
20. As to the defendant Savannah Electric Power Company the petition alleged that its high tension wire was, before the waste was deposited on the land in question, only six feet three inches from the ground, and that the area was used as pasture land and was a likely place for hunters. This defendant, who under the decision of the Supreme Court in Georgia Power Co. v. Leonard, 187 Ga. 608 ( 1 S.E.2d 579), owed the plaintiff the care required by Code § 105-401, supra, to an invitee and who had at least constructive notice that the area would be filled and who took no action to protect the plaintiff from the danger, of the uninsulated wire or even warn him of its danger, which for reasons alleged in the petition appeared to be harmless, was not as a matter of law not guilty of any actionable negligence so as to be free from any liability under the allegations of the petition. In Planters Electrical Membership Corp. v. Burke, 98 Ga. App. 380, 388, supra, it was held that the very fact that the wires were strung within 10 and 12 feet of the ground across the barnyard of another indicated that they were harmless. How much more innocent would wires appear to be that were strung only six feet three inches above the level of the ground? "There is nothing in the petition to indicate that the plaintiff was aware that the wires were not insulated, or that they were of high voltage, or could apprehend for any other reason, that, if one of the pipes which he employed in his work should come in contact with them, he would be injured. It is a matter of common knowledge that a great many wires used, for instance, in telephonic communication are not charged with electric current of such voltage as would inflict injury upon a person in like circumstance. Merely seeing the wires strung over the property would not put the plaintiff on notice of a dangerous condition." Lamar Electric Membership Corp. v. Carroll, 89 Ga. App. 440, 453 ( 79 S.E.2d 832). This language was quoted approvingly in Planters Electric Membership Corp. v. Burke, supra. In the present case it was alleged that the uninsulated wire was only six feet three inches from the ground before any waste was deposited upon the area, that the wires had corroded so that they appeared to be of galvanized iron, and that: "There was nothing about the wires or the surrounding area to warn petitioner that the wires in question carried twenty-three hundred (2300) volts of electricity. There was nothing about the wires to indicate to petitioner that there was any danger connected with them." Accordingly, count 1 of the petition set forth a cause of action against the defendant Savannah Electric Power Company and the trial court did not err in overruling the general demurrer of this defendant to this count.
21. Count 2, as to the Mayor Aldermen of the City of Savannah, is the same as count 1 and requires no further decision by this court.
22. As to the remaining defendants, count 2, in addition to the facts and allegations of negligence contained in count 1, alleges that the defendant Savannah Atlanta Railway Company as agent of the defendant Midland Properties Company requested the defendant Savannah Electric Power Company to disconnect the electricity at the transformer nearest to the area to be filled so that no electricity would be flowing through the uninsulated wires when the plaintiff was working in the area, and that such request went unheeded, that the Savannah Electric Power Company was negligent in ignoring such request, and that the other two defendants were negligent in failing to follow through with such request.
Count 3, in addition to the allegations contained in count 1 as to the negligence of each defendant, alleged that the codefendants of Savannah Electric Power Company were negligent in failing to notify this defendant to disconnect the electricity before the plaintiff was required to work in the area where the wire was located.
As has been previously shown, count 1 was not subject to the general demurrers, and the additional allegations of counts 2 and 3 did not exonerate any of the defendants from the negligence already alleged in count 1 and by reference made a part of counts 2 and 3. Therefore, it is immaterial in passing on the demurrers to counts 2 and 3 to consider the additional allegations of negligence, for, as against general demurrer, the allegations contained in count 1 and made a part of counts 2 and 3, were sufficient to withstand the defendants' general demurrers to these counts, and it cannot be said that such additional counts were lifeless. "A general demurrer goes to the whole pleading to which it is addressed, and should be overruled if any part thereof is good in substance. Blaylock v. Hackel, 164 Ga. 257 (5) ( 138 S.E. 333)." Calbeck v. Herrington, 169 Ga. 869, 873 ( 152 S.E. 53). "The petition set forth a cause of action and could not be dismissed on general demurrer. To be subject to general demurrer, a petition must be utterly lifeless. If there is a spark of life in it, it is good against such a demurrer." Medlock v. Aycock, 16 Ga. App. 813 (1) ( 86 S.E. 455). Accordingly, the judgment overruling the general demurrers to counts 2 and 3 was not error.
In view of what has above been held the petition was not subject to any of the demurrers, either general or special, and the judgments overruling all of such demurrers must be affirmed.
Judgments affirmed. Gardner, P. J., Townsend, Carlisle, and Quillian, JJ., concur. Felton, C. J., dissents.
1. The general demurrers of all of the defendants to the three counts of the petition should have been sustained. The ruling by the majority that the facts allege that the Midland Properties Company, the Savannah Atlanta Railway Company and The Mayor Aldermen of the City of Savannah occupied the status of an owner and occupier of the premises involved in this action is based on a false premise. It is true that these defendants in granting the spoil disposal easement agreed to construct dikes and other improvements on the land for purposes of the spoilage operation and reserved all rights and privileges in the land as could be enjoyed without abridging the rights granted to the grantees, but the majority opinion overlooks the fact that, at the time these spoilage easements were granted, the Savannah Electric Power Company already had an easement over the land for electric distribution purposes to which the rights of the other defendants were subject, and the other three defendants could not grant any right inconsistent with or superior to those of the power company nor could they reserve any rights inconsistent with or repugnant to those of the power company without its consent. It therefore follows that the dredging contractor and its employees were not the invitees of the defendants, for the reason that only the power company had the right to invite anyone to use its power line easement for purposes repugnant to and inconsistent with the power line easement. It stands to reason that the spoil disposal easements which had for their goal the raising of the ground level underneath the electric wires were inconsistent with and repugnant to the power line easement. The grantors of the spoil disposal easements had no authority to extend an invitation to anyone to violate the rights of the power company. It is well settled that the owner of a servient estate cannot use property in a manner or for purposes inconsistent with a granted easement. Georgia Power Co. v. Leonard, 187 Ga. 608 ( 1 S.E.2d 579), and case and authorities cited; 17A Am. Jur. 718-720, Easements, § 112.
2. As to the power company the petition did not allege any reason why it should have anticipated pedestrians. It alleged that the presence of hunters was likely but not that the power company had reason to anticipate their presence.
3. The petition alleges that the United States was granted the spoil disposal easement and made a contract with an independent contractor to do the filling in of the land. All of the defendants, and especially the power company, had the right to expect that neither the United States nor a contractor employed by it would commit a trespass upon the power company's rights under its superior power line easement, and they had a right to presume and expect not only that permission would be obtained from the power company to encroach on its easement but that the United States or whoever did the filling in would furnish its employees with a safe place to work, even as to static dangerous conditions existing even through negligence. It is clear to me, under the facts alleged in the petition, that unless some reason is alleged why the defendants did not have reason to indulge in the presumptions above enumerated or why the defendants had some reason to anticipate that the United States or its contractor would trespass or would fail to safeguard its employees against injury even from dangerous conditions on the land, conceded for the sake of argument due to the negligence of the defendants, the petition is fatally defective. This case would also fall, assuming that the defendants were negligent, under the principle of superseding cause, and I think that under the facts alleged the negligence of any or all of the defendants, if any, is too remote to be considered the proximate cause of the most unfortunate injuries in these cases. Southern Ry. Co. v. Webb, 116 Ga. 152 ( 42 S.E. 395, 59 L.R.A. 109) and cases and authorities cited in Blunt v. Spears, 93 Ga. App. 623 ( 92 S.E.2d 573).
The first special demurrer of the Savannah Electric Power Company should have been sustained because the plats were a part of the description of the 378 acres upon which the spoilage easements were granted.
4. It is the duty of the plaintiff to allege facts showing that alleged negligence of the defendants was the proximate cause of the injuries sued for. The power company demurred to paragraph 11 of the petition because it failed to allege whether the contract between the United States and the contractor was oral or in writing and failed to show the substance of the contract. The other defendant's demurrers were on the sole ground that it was not alleged whether the contract was oral or in writing. I think that these demurrers should have been sustained. It is true that the action is in tort and not on that contract, but the petition is seeking to allege facts showing that the proximate cause of the injuries was the negligence of the named defendants. The petition shows that the burden was on the United States or the contractor to get permission from the power company to use the land underneath the power line. The terms of the contract should be alleged to show what the duties and the responsibilities of the parties were. The contract is as available to the plaintiff as to the defendants and could be vital to plaintiff's case.
5. The Savannah Electric Power Company's special demurrer to paragraph 25 of the petition should have been sustained.
6. The special demurrers of the three defendants other than the City of Savannah to paragraph 26 of the petition should have been sustained.
7. The defendants' special demurrers to paragraphs 30, 32 and 45 of the petition should have been sustained.