Hudgins v. Coca Cola Bottling Co.

Fish, P. J.

As the plaintiff did not except to the order sustaining the special demurrer to the original petition and requiring him to amend, it must be assumed that this judgment was correct. The amendment did not cure the defects in the original petition pointed out by this special demurrer, unless the allegations with reference to the plaintiff’s inability to ascertain the real cause of the explosion had this effect. The only question, therefore, presented for decision is whether or not it is sufficient to aver, in a suit for an alleged negligent injury, that the plaintiff has been unable to ascertain the particulars of the negligence and the real cause of the injury, but that these matters are more peculiarly within the knowledge of the defendant, and therefore need not be set out.

In some jurisdictions it is held, that as negligence depends upon the facts, and is matter for proof, it is not necessary, in a complaint founded upon negligence, to do more than make a general averment that the defendant was negligent; and that under such an averment any negligence contributing to the injury may be shown. See 1 Estee’s Pl. (4th ed.) § 327; Bliss on Code Pl. § 310 a; 14 Enc. P. & P. 334. It is also held that the particulars of the negligence need not be pleaded where the facts lie more peculiarly within the knowledge of the adverse party. Eldridge v. R. Co.; 1 Sand. 89. Those States which follow the rule abo^^Bated also hold that the pleader is required to state the facts constituting the negligence complained of, only so far as they appear to be properly within his knowledge. Chicago Ry. Co. v. Jennings, 157 Ill. 274 . The rule has been stated by tbe Court of Civil Appeals of Texas as follows: “ Particular facts of *698 negligence implied from a negligent act need not be alleged when it is not in the power of the pleader to do so. Such facts are peculiarly within the knowledge of the defendant.” San Antonio Ry. Co v. Adams, 6 Tex. Civ. App. 102 . See also Cox v. Gas Co., 17 R. I. 199. Counsel for thé plaintiff in error earnestly invokes the application of this rule in the present case. ' But it can not be followed in this State without doing violence to numerous decisions of this court of many years standing, and perhaps also to the statutory provision that the petition shall “plainly, fully and distinctly” set forth .the “charge, ground of complaint, and demand.” Civil Code, § 4960. The rule is firmly fixed in the adjudications of this court that while as against a general demurrer a mere general averment of negligence will suffice, a plaintiff must, when called on by special demurrer to do so, specify wherein the negligence consisted and the particulars thereof. Of course there are limitations to this rule, and cases arise where the line must be drawn. The plaintiff must not be too general, and the defendant must not be too particular. But the rule is well established, though not always easy of application. In Pullman Car Co. v. Martin, 92 Ga. 161 , the plaintiff sought to recover the value of the jewelry lost in a sleeping-car, averring that “ defendant so negligently guarded and protected her while she was thus sleeping, that through its negligence some person unknown to her, while she was asleep, and during the night,” took the jewelry from a satchel. It was held that these averments of negligence were good against a general demurrer, but were too indefinite as against a special demurrer calling for the particulars of the negligence. In Blackstone v. Railway Co., 105 Ga. 381 , it was alleged that the injury resulted from a pole which was “too near the track.” This averment was held too general, on special demurrer raising the objection that the petition did not show “how near said pole was to the track.” In Miller v. Merchants Transportation Co., 115 Ga. 1010 , the petition alleged that the plaintiff’s injuries were caused in part by the negligence of the defendant in not properly loading and distribufpg the cargo of a ship. It was held that the petition was properly dismissed on special demurrer calling for particulars as to the alleged negligence. Similar rulings were made in Palmer Brick Co. v. Chenall, 119 Ga. 837 (5), Seaboard Air-Line Railway v. *699 Pierce, 120 Ga. 230 , and Macon Railroad Co. v. Stewart, 120 Ga. 890 . Many other decisions to the same effect might be cited, but the foregoing will serve to illustrate the rule which has been so often and so uniformly applied-by this court. The further rule is equally' well established, that a plaintiff must recover upon the allegations of negligence alleged, and is not permitted to recover on acts of negligence not set out in the petition. Palmer Brick Co. v. Chenall, 119 Ga. 837 (6), and cit.

In view of these well-established rules, the conclusion is inevitable that in this State a plaintiff can not avoid setting forth the particulars of the negligence relied on by averring that such mat-!, ters are more peculiarly within the knowledge of the defendant, and can not, for want of information, be alleged. What proof of negligence could be offered when he avers that he- can not, for want of information, allege any specific act of negligence ? We are not unmindful of the fact that hardship may sometimes result from the application of this rule in given cases, but we entertain no doubt that the conclusion we have reached is correct. Nor are the-axmr.ments in the present case aided by the maxim res ipsa loquitur. If an inference of negligence is to be drawn from the explosion of the bottle (McDonnell v. Central Ry. Co., 118 Ga. 91 ; Chenall v. Palmer Brick Co., 117 Ga. 107 ; Palmer Brick Co. v. Chenall, 119 Ga. 842 ), it is an inference which the jury may draw from the nature of the injury and the manner of its occurrence, and can not be invoked to aid a defective pleading, "The general rule is that negligence is never presumed from the mere fact of injury; yet the manner of the occurrence of the injury complained of, or the attendant circumstances, sometimes well warrant an inference of negligence. It is sometimes said that it warrants a presumption of negligence; but the presumption is not one of law but of fact. It is, however, more correct and less confusing to refer to it as an inference rather than a presumption; and not an inference which the law draws from the fact, but an inference which the jury are authorized to draw; and not an inference which the jury are compelled to draw.” Palmer Brick Co. v. Chenall, 119 Ga. 842 .

The plaintiff having been given an opportunity to amend, to meet the defects in the original petition pointed out by the special demurrer, and the amendment offered not being sufficiently *700 definite to cure the defects, there was no error in dismissing the petition, without regard to whether the petition was good in substance. It is therefore unnecessary to determine whether the general demurrer should have been sustained.

Judgment affirmed.

All the Jiastices eonmr, except Candler, J., disqualified, and Lumgkin, J., not presiding.