Wright v. Lester , 218 Ga. 31 ( 1962 )

Qtjillian, Justice,

dissenting. It is with reluctance that I dissent from the view of my learned colleagues in the well-written division numbered 3 of the maj ority opinion.

I am, however, constrained to- the view that the allegations that the meetings of the defendant and the plaintiff’s wife were at certain places between certain dates within the statute of limitation were sufficiently definite. In Hobbs v. Holliman, 74 Ga. App. 735 (3) (41 SE2d 332), it is held: “In the instant case., the averments in the petition to the effect that the loss of consortium, caused by the defendant’s criminal conversation with and the harboring of the plaintiff’s wife, occurred during the year 1945 and extended into January, 1946, at designated places and at various and sundry places unknown to- the plaintiff but well known to the defendant, were sufficiently specific as against the special demurrer alleging in effect that the plaintiff failed to allege when or where the defendant had harbored or had criminal conversation with the plaintiff’s wife while the plaintiff was overseas or after his return home.”

The Hobbs case, supra, follows the case of Ellis v. Pullman & Co., 95 Ga. 445 (3) (22 SE 568), where is found what I believe is a sound pronouncement of the rule of pleading: “Averments in the petition to the effect that the alleged misappropriation occurred between the 24th of October, 1892, and the 29th of August, 1893, were sufficiently specific as against a special demurrer alleging that there were ‘no allegations of the time of the misappropriation.’ ”

Throughout this State’s judicial history it has never been necessary to allege the precise date on which a particular event, plead as a matter of inducement to the cause set forth, occurred. As early as Bond v. Central Bank of Ga., 2 Ga. 92, 100, we find the rule stated: “In an action ... by the bearer of a promissory note, against the maker, the time should have been mentioned when the note was delivered. The real day need not be stated.” (Italics ours.)

In cases where the acts are alleged as covering a particular specified period during which a particular invasion of the plaintiff’s rights occurred, as in the cases of Page v. Virginia-Carolina Chemical Co., 62 Ga. App. 727 (9 SE2d 857), Hobbs v. Holliman, 74 Ga. App. 735, supra, Ellis v. Pullman & Co., 95 Ga. 445, supra, and the case sub judice, it is not necessary to show each separate day on which the wrongful acts occurred.

Moreover, where acts of continuous thefts or seduction occur, they are more within the knowledge of the wrongdoer than the injured parties, and where they are alleged to have happened between specified dates and to be within the knowledge of the wrongdoer, the perpetrator of the wrong, when sued, is not entitled to have a special demurrer sustained calling for more specific information as to when such thefts or acts of seduction occurred. City of Abbeville v. Eureka Fire Hose Mfg. Co., 177 Ga. 204 (170 SE 23), citing Hudson v. Hudson, 119 Ga. 637 (46 SE 874); McElmurray v. Blodgett, 120 Ga. 9 (47 SE 531); Raleigh &c. R. Co. v. Pullman Co., 122 Ga. 700 (50 SE 1008).