Commerce Coca-Cola Bottling Co. v. Farabee

Wade, J.

1. Discarding all surplus allegations therein, the petition as a whole set out a cause of action, the necessary averments as made were sufficiently full, definite, and certain to put the defendant on notice and to enable it intelligently to make defense,'and the court did not err in overruling the general and special demurrers. See Busby v. Marshall, 3 Ga. App. 764 (60 S. E. 376), as to the degree-of certainty and definiteness required in pleadings. See also, in the same connection, Fuller v. Inman, 10 Ga. App. 680, 693 (3) (74 S. E. 287).

(a) There was more than a general allegation of negligence, since the petition expressly alleged that the bottle which exploded and brought about the injury complained of was improperly and excessively charged with carbonic gas, etc. The case of Hudgins v. Coca-Cola Bottling Co., 122 Ga. 695 (50 S. E. 974), where no specific act of negligence was charged, is therefore not in point. See on the general subject Payne v. Rome Coca-Cola Bottling Co., 10 Ga. App. 762 (73 S. E. 1087).

2. There was some evidence to support the necessary averments in the petition -and to warrant the inference, drawn by the jury, of negligence on the part of the defendant; and the failure to prove nonessential allegations was immaterial.

3. No ruling of the court is complained of except the ruling on the demurrer, the case was fairly submitted to the jury, and, their conclusion on the issues of fact involved being supported by evidence and having - been approved by the trial judge, this court is without jurisdiction to interfere. Judgment affirmed.

The demurrer was on the following grounds: (1) No cause of action is set forth. (2) Paragraph 6 is demurred to because the allegation of negligence is too general, and there is no allegation as to what was the amount of carbonic-acid gas with which the bottle was charged, or what is a proper charge of carbonic-acid gas or what is an excessive charge. (3) For the same reason, and because of irrelevance and immateriality of its allegations, paragraph 7 is demurred to. (4-5) Paragraphs 8 and 10 are demurred to for the reasons stated in the second ground of the demurrer.

T. 8. Mell, for plaintiff in error. T. J. Shaclcelford, Cobh, Erwin & Ruclcer, contra.