Abercrombie v. Ledbetter-Johnson Co.
Abercrombie v. Ledbetter-Johnson Co.
Opinion of the Court
It is the settled law of this State
There is no contention that a wilful tort is involved, and application of the foregoing rule eliminates sovereign immunity to support the general demurrers to the petition if the allegations of the petition are sufficient to show negligence by the defendants as the proximate cause of the alleged damage. In considering this proposition under the practice in effect when the trial judge dismissed the action, the petition on general demurrer must be strictly construed- against the pleader, although general allegations of negligence other than mere unsupported conclusions of the pleader are good. See Code § 81-304; James v. Smith, 92 Ga. App. 131, 137 (88 SE2d 179); McPhail v. Atlantic C. L. R. Co., 93 Ga. App. 599 (2) (92 SE2d 558). Under the rule of strict construction of the pleadings on demurrer contradictions are resolved to the detriment of the pleader, and unfavorable inferences fairly drawn from the pleadings must prevail. See Independent Life & Acc. Ins. Co. v. Pantone, 80 Ga. App. 426 (1) (56 SE2d 153); Krueger v. MacDougald, 148 Ga. 429 (1) (96 SE 867); McEntire v. Pangle, 197 Ga. 414 (1) (29 SE2d 503).
The petition shows that in the course of construction of Interstate 20 in Douglas County, including changes in other roadways, the defendant moved large quantities of fill materials and constructed embankments, which had the effect of changing the drainage features of the terrain, and that the alleged damage to the plaintiff’s property was caused by the change in the flow of surface waters and the washing of silt and debris. While the petitioner does not follow the usual practice of setting forth specific allegations of negligence as the proximate cause of the alleged losses he does refer to negligence in two paragraphs of the petition. In Paragraph 19 he alleges “[t]hat as a natural and direct result of the negligent manner in which the defendants
Judgment affirmed.
070rehearing
On Motion for Rehearing.
Appellant insists in his motion for rehearing that since this
The Act, which as amended became effective September 1, 1967, provides that it “shall govern all proceedings in actions brought after it takes effect and also all further proceedings in actions then pending, except to the extent that in the opinion of the court its application in a particular action pending when this Act takes effect would not be feasible or would work injustice, in which event the former procedure applies.” Ga. L. 1966, pp. 609, 671; Ga. L. 1967, pp. 8, 226, 250.
We construe this to mean that the trial court under the conditions stated above might apply the provisions of the Act to actions pending on the effective date of the Act as to rulings and orders made subsequent to September 1, 1967. Since the rulings of the trial court here under review preceded the effective date of the Act, this court will examine such rulings in the light of the pleading requirements as they existed at the time the trial court ruled thereon.
All judges sitting en banc concur in that which is said on motion for rehearing. Accordingly,
The motion is denied.
Reference
- Full Case Name
- ABERCROMBIE v. LEDBETTER-JOHNSON COMPANY Et Al.
- Cited By
- 27 cases
- Status
- Published