General Supply & Construction Co. v. Lawton ( 1908 )

Buck, J.

(After stating the facts.)

1. We are of the opinion that the petition set forth a cause of action, and that the court was right in overruling a general demurrer thereto.

%. Besides filing a general demurrer, the defendant demurred to the petition specially on the grounds that “said declaration is vague and insufficient in that it does not set out the name of the ‘agent or foreman’ of this defendant, under whose direction plaintiff was working at the time of the alleged accident;” and upon the further ground that “The said declaration is vague and insufficient, in that it states that the plaintiff was acting under the direction of one of the agents or foremen of the defendant company, and yet it fails to specify whether agent or foreman; and further, it fails to state in detail what duties, services, or labor such agent or foreman performed, so that it may appear whether such agent or foreman was .acting as a fellow-servant of plaintiff or as vice-principal of defendant.” Considering these two grounds of demurrer together, we are of the opinion that they should have been sustained, no appropriate amendment to the petition to meet them being offered. Had the plaintiff stated in his petition what “duties, services, or labor the alleged agent or foreman performed,” so that the defendant would have been put upon notice as to whether such agent or foreman was acting as a fellow-servant of plaintiff or as vice-principal of the defendant, the mere failure to give the name of the person alleged to be agent or foreman would not of itself have been good ground for demurrer. Pierce v. Seaboard Air-Line Ry., 122 Ga. 664 (50 S. E. 468); South Ga. Ry. Co. v. Ryals, 123 Ga. 330 (51 S. E. 428). But the failure both to state the name of the alleged agent or foreman, and to set forth what duties or services his position required of him, left the petition open to attack by special demurrer. The information called for by this special demurrer was of such a character that the defendant was entitled to have it given in the plaintiff’s statement of his case in the declaration. It was material for the defendant to know, in preparing to meet the ease made by the plaintiff in his pleadings, whether or not the plaintiff would insist that in passing under the scaffolding, by the falling of which the plaintiff was injured, “by direction of the said- agent or foreman,” the direction or order to pass under the scaffolding was given by one whose position and duties were of such a nature as to make him the vice-principal of the defendant, or whether he was a mere fellow-servant with the plaintiff himself.

There were other grounds of special demurrer,’ but, so far as they were meritorious, they were met by proper amendments; or at least, as they were stated, they will not require a reversal.

3. The court having erroneously overruled the ground of the demurrer which we have held to be a proper criticism of the petition in this case, all that took place subsequently upon the trial was nugatory and of no effect, the erroneous refusal to sustain a demurrer vitiating the entire trial; and questions made by assignments of error upon rulings of the court, during the trial, and upon certain portions of the charge to the jury, will not be considered. Seaboard Air-Line Ry. v. Smith, 3 Ga. App. 1 (59 S. E. 199).

Judgment reversed.

All the Justices concur'.