DocketNumber： 32486, 32487.
Citation Numbers： 55 S.E.2d 374, 80 Ga. App. 63
Judges： WORRILL, J.
Filed Date： 9/30/1949
Status： Precedential
Modified Date： 1/12/2023
1. The allegations of count one of the petition show only that the plaintiff was informed that the defendant claims to have a release in accord and satisfaction. This does not show an accord and satisfaction, and the petition otherwise sets forth a cause of action based on wilful and wanton injury. Count two, which makes no reference to a release in the way of an accord and satisfaction, sets forth a cause of action based on the alleged negligence of the defendant. Consequently, the trial judge erred in sustaining the defendant's demurrer to each count of the petition on the ground that each affirmatively showed an accord and satisfaction.
2. The allegations respecting the negligence of the defendant's employees were sufficient to withstand a general demurrer.
3. The rulings on the special demurrers as complained of in the cross-bill of exceptions do not show error.
The petition is in two counts. The material allegations of the first count are that the defendant has injured and damaged the plaintiff in the sum of $100,000; that defendant's servant and employee, Joe Dennis, was operating its engine or locomotive No. 378 drawing a string of freight cars along a track of the defendant located in Fulton County, Georgia, and was proceeding at approximately 40 miles per hour; that at the point where the said tracks cross Pryor Road there is an overhead trestle; that the plaintiff's 4-year-old son, Morris Maner was on the track and on said trestle; that the said engineer and the other employees of the defendant on said engine had a clear view ahead and actually knew of the presence of the deceased on the *Page 64 tracks and on the bridge and saw the child at a distance of 250 yards; that the defendant's engineer "drove said train at the reckless and riotous rate of speed, to wit, 40 miles per hour onto and upon said infant child and did strike it, hurl it a great distance and run over it . . breaking its back and crushing it"; and that the defendant's servants did not apply the brakes of the train or slacken its speed until the engine struck the plaintiff's child. There were general allegations to the effect that pedestrians customarily and habitually, and with the knowledge and consent of the defendant company, used paths crossing the tracks at this point and paths parallel and adjacent to the tracks, these latter paths leading onto the trestle, and that defendant's engineer and other servants engaged in operating the train in question were familiar with that section of track, knew those facts and were under a duty to anticipate the presence of the deceased and other pedestrians at the point where the homicide occurred. It was alleged that the decedent was a child 4 years old with an expectancy of 50 and 76/100 years and capable of rendering services to the plaintiff of the value of $5 per week which value would have increased as time passed.
The plaintiff further alleged that shortly after the homicide of her child an agent of the defendant visited her in her home; that the exact time of such visit is known to the defendant but unknown to the plaintiff; that at that time the plaintiff was prostrated from grief, she was unable to see because her eyes were filled with tears, and she being five-months pregnant, was under the influence of drugs and opiates, and thus was unable to contract; that said agent of the defendant saw her condition and knew that she was unable to contract; that he presented her with a check for $500, saying that it was a gift and donation from the defendant to help defray the funeral expenses of her deceased child; that the plaintiff accepted the check as a gratuity, endorsed it at the agent's request, and said agent gave the check to her husband for the purpose of applying the proceeds thereof to the funeral expenses of her deceased child; that there never was any contract between the plaintiff and the defendant, and the defendant's agent knew these facts; and that in the transaction the defendant through its said agent did not act in good faith. She alleged that after the birth of her second child *Page 65 in March, 1947, she was informed that the defendant claimed she had signed a release, and that the check endorsed by her was in accord and satisfaction of her claim arising from the death of her son, and that upon learning these facts she sought legal redress "for the said fraud herein set out perpetrated upon her." Allegations of various acts of negligence on the part of the defendant's engineer and servants in charge of the engine and freight cars follow. The allegations of count two are substantially like those of count one, except that the plaintiff charged that the defendant's agents knew of the frequent use of paths adjacent to and parallel to the tracks in the vicinity of the homicide, and that despite this knowledge the defendant's engineer and train crew failed to observe the plaintiff's child on the trestle, and failed to reduce the speed of the train until the engine struck the child, and count two contains no allegation in any wise relating to the signing by the plaintiff of any release or any claim by the defendant that the plaintiff did so.
The defendant filed demurrers, both general and special to the petition, to each count, and to certain paragraphs of each count. The trial judge sustained the general demurrer to the petition and to each count thereof on the ground that the petition and each count showed affirmatively that there had been a full accord and satisfaction, and did not show any satisfactory reason why tender back of the consideration received was not made before bringing the action. The two cases before the court come here on the plaintiff's exception to the sustaining of the demurrers, and on the defendant's cross-bill of exceptions complaining of the overruling of certain special demurrers. The questions to be determined are as follows: 1. Does the petition show a gratuity only, or does it show a release in accord and satisfaction such as cannot be avoided without paying or tendering the consideration received? 2. Does the petition show the deceased was a trespasser, and if so, was it the defendant's duty to anticipate the presence of the deceased on the tracks?
1. We think that the first question presents no great difficulty. *Page 66 The only material allegation in count one of the petition relating to that question states that the plaintiff is informed that the defendant claims to have a release in accord and satisfaction. By no process of reasoning can this allegation be construed to mean that the plaintiff admits or concedes that she has signed such an instrument or that the defendant has in its possession any such instrument. She does not allege that she signed any instrument, and thus there are no allegations of fact which would necessitate an avoidance of such an instrument. Count one does not show an accord and satisfaction, and by its allegations sets forth a cause of action based on wilful and wanton injury. Count two, which makes no reference to a release, sets forth a cause of action based on the alleged negligence of the defendant. It follows that the trial judge erred in sustaining the defendant's demurrer to each count of the petition on the ground that each count affirmatively showed an accord and satisfaction.
2. The next question to be determined is: Does the petition show the deceased was a trespasser, and if so, was it the defendant's duty to anticipate the presence of the deceased? The plaintiff alleges in her petition, and the pleadings therein show, that a train operated by the defendant struck and killed the plaintiff's four-year-old son on a trestle spanning Pryor Road, at a point in Fulton County where Pryor Road and Manford Road intersect. That the defendant's agent saw the child from a distance of 250 yards and then negligently killed him. The plaintiff alleges that, since, along the track at the point of the homicide, there was a path which was frequently used by pedestrians, including children, and since this fact was known by the engineer of the train, there was actionable negligence by the engineer in not anticipating the presence of the child and thereby avoiding the homicide.
Since a four-year-old child does not know right from wrong in general, and cannot legally commit offenses against the law of the land, it naturally follows that such child cannot be guilty of intentional trespass. Even if the child was a trespasser, it would be a question of fact for the jury to determine and also a question for the jury's determination whether it was the defendant's duty to anticipate the deceased's presence, inasmuch as the allegations of the petition are sufficient to withstand a general demurrer relative to that. *Page 67
3. We come now to consider the cross-bill of exceptions and the exceptions pendente lite complaining of the overruling of certain special demurrers. The first question presented is whether the allegations of the first count of the petition relating to the duty of the defendant to anticipate the presence of the deceased upon its tracks at the time and place were properly a part of that count, since the theory upon which the count was laid seems to have been that the defendant's servants actually saw the child on the track, and continued to operate the train in his direction and ran over him without applying the brakes, and is based on actual negligence rather than implied negligence. We do not think that we can say that these allegations were not properly a part of this count of the petition. At least they serve to illustrate the contention that the defendant's servants did in fact see the child, since it raises an inference that they, knowing of the likelihood of the presence of pedestrians on the track, were on a lookout for them. We do not think that the defendant has shown that these allegations should be stricken from the petition.
The special demurrers to count two which the trial court overruled, and of which complaint is here made by way of the cross-bill, sought to have stricken from the petition certain allegations respecting the negligence charged to the defendant in the operation of the engine and cars that struck the plaintiff's son. We do not think that these demurrers should have been sustained, and therefore the exceptions pendente lite and the cross-bill of exceptions to this court show no error.
The trial court erred in sustaining the general demurrers to each count of the petition and in dismissing the same, and for this reason the judgment must be reversed on the main bill of exceptions.
Judgment reversed on the main bill of exceptions, affirmed onthe cross-bill. Sutton, C. J., and Felton, J., concur.