Lawrenceville Oil Mill v. Walton , 143 Ga. 259 ( 1915 )

Atkinson, J.

1. As a matter of practice, a motion to dismiss a petition, on the ground that it sets forth no cause of action, may be entertained when presented for the first time at the trial term. Capps v. Edwards, 130 Ga. 146 (60 S. E. 455). Whether such motion should be sustained is another question. From the briefs of counsel for the plaintiff in error, it develops that the grounds relied on for dismissing the action are, that the petition fails to allege that the defendant had knowledge of the defect in the valve from which it is claimed that the injury resulted; and that there is no allegation that the plaintiff did not have equal means with the defendant of knowing the defect. Under the law in this State in 'regard to the liability of the master to his servant for injuries, on account of negligence in the matter of furnishing safe machinery with which to work, it should ordinarily appear, in cases of latent defects, that the master knew or ought to have known of the defect: also that the servant did not have equal means with the master of knowing of the defect. Civil Code, §§ 3130, 3131; Holland v. Durham Coal & Coke Co., 131 Ga. 715 (63 S. E. 290). It is not in express terms alleged in the petition that the defendant had knowledge or ought to have known of the defect, or that the plaintiff did not have equal means with the defendant of knowing thereof. If, however, there are other allegations which, in substance, import the same thing, the judgment refusing to dismiss the ease on general demurrer should not be reversed for the want of more specific allegations on the subject. In the case of Johnson v. Missouri Pacific Railway Co., 96 Mo. 340, 345 (9 S. W. 190, 9 Am. St. R. 351), it was said: “The specific objection urged to the above petition is, that it does not allege that defendant either knew, or might by the exercise of ordinary care have known, that said hammer was not reasonably safe for the purposes for which it was to be used. In the ease of Crane v. Railroad, 87 Mo. 588, it was held, that, in an action by a servant against his master for negligence in furnishing improper or unsafe appliances for the servant’s use in his work, the petition must allege that the'master cither knew, or might by the exercise of ordinary care have known, of the dangerous and'defective construction of the appliance, or it must contain an equivalent averment; and that an allegation that the master negligently furnished an appliance which was defective and unsafe is an equivalent averment, and sufficient. Under this ruling, the objection to the sufficiency of the petition, based on the ground stated, is not well taken, as it is therein averred that the unsafe hammer was negligently furnished plaintiff by defendant.” In the case of O’Connor v. Illinois Central Ry. Co., 83 Iowa, 105 (48 N. W. 1002), it was held: “In an action by an employee of a railroad company, for damages for injuries sustained in being thrown from a freight-car alleged to be so defectively constructed that it would not turn a curve, an allegation that the plaintiff’s injury was caused wholly by the defendant’s negligently using and permitting to be jised the car so defectively constructed sufficiently charges negligence on the part of the defendant, although such negligence could only be proven by showing that the defendant had either actual or constructive knowledge of the defect.” In the case of Chicago, Burlington & Quincy R. Co. v. Kellogg, 55 Neb. 748 (76 N. W. 462), it was held: “An averment in a petition that the defendant negligently permitted a certain appliance to become defective, and negligently suffered it to remain in a defective condition, implies that the defendant knew or was culpably ignorant of the defect.” From the allegations of the petition now under consideration, it appears that the valve in which the defect existed was not supplied as a separate instrument, but as an attachment forming a part of a steam boiler, a complex piece of machinery. It was different from a chisel, jackserew, or cant-hook, as involved in the cases of Banks v. Schofield Sons Co., 126 Ga. 667 (55 S. E. 939); Bolden v. Central Ry. Co., 130 Ga. 456 (60 S. E. 1047); Williams v. Garbutt Lumber Co., 132 Ga. 221 (64 S. E. 65). The recitals descriptive of the valve and the manner in which the injury occurred do not, within themselves, import an obvious defect or danger. In general terms it was alleged that the plaintiff, whose duty it was to use the machinery in the manner attempted, did not know of the defect and by the exercise of ordinary care could not discover it. This general allegation, when considered in connection with the context, implies a latent defect. 'Under those circumstances, plaintiff’s means of knowing of the defect would not be equal to those of the master, if, as alleged, the latter knew or by the exercise of ordinary care could have discovered it. In substance, such allegations were the equivalent of allegations that the plaintiff did not have equal means with the defendant of knowing of the defect. Though a latent defect, it would be negligent not to warn the servant of its existence, if the master knew, or by the exercise of ordinary care could have known, of its existence. Civil Code, § 3130. The law just cited declares it to be the duty of the master to furnish “machinery equal in kind to that in general use, and reasonably safe for all persons who operate it with ordinary care and diligence.” After alleging facts constituting an omission of duty in this regard, it was alleged in general terms that, on account of such omission, the defendant was negligent, and that the plaintiff’s injury resulted from such negligence. Under the circumstances, this, in substance, was an indirect way of charging the master with knowledge of the defect. It therefore appears that the petition was not subject to general demurrer for either of the reasons urged for its dismissal.

2. One ground of the motion for new trial complains of the following charge: “In some torts the entire injury is to the peace, happiness, or feelings of the plaintiff. In such cases no measure of damages can be prescribed, except the enlightened conscience of impartial jurors.” This charge was appropriate to the element of damages based on pain and suffering, but not to the elements consisting of special damages for loss of time, loss of earning capacity, and expenses incurred for medicines, physicians’ bills and the like. Linder v. Brown, 137 Ga. 352 (73 S. E. 734). The charge complained of should have been limited by the judge to damages for pain and suffering. It was not so limited. On this point the case on its facts is controlled by the decision in Southern Ry. Co. v. Broughton, 128 Ga. 814 (58 S. E. 470), and a new trial must be ordered.

3. As the judgment will be reversed, and there will be another trial, no ruling will be made with reference to the general grounds of the motion.

Judgment reversed.

All the Justices concur, except Fish, O. J., absent, and Evans, P. J., disqualified.