concurring specially. Although I concur in the judgment of reversal, I do not concur in everything that has been held and said by the majority opinion.
I think, with reference to division 2 on the question of duplicity, that the facts alleged in the original petition showed wilful and wanton misconduct and that such conduct arose from a failure by the defendants to use reasonable care to avoid injury to the plaintiff, knowing the ever-present danger of handling dynamite in blowing up stumps with a faulty and imperfect fuse such as is alleged in the original petition. Southern Railway Co. v. Wiley, 9 Ga. App. 249, 251 (71 S. E. 11). I think the failure of the defendants to prevent injuring the plaintiff, as alleged in the original petition, who they knew was or would be in danger when he undertook to blow up stumps with such dynamite and defective fuse was wilful and wanton misconduct. DeVane v. A. B. & A. R. Co., 4 Ga. App. 136, 138 (60 S. E. 1079). It seems to me that the special difficulties on the question of duplicity will, to some degree, disappear if the circumstances, as shown by the facts alleged in the petition are considered with relation to wilful and wanton negligence, or misconduct, regardless of the fact that incidentally some of the language used in the petition would be appropriate to some other kind of negligence. It might be here particularly noted that in paragraph 18 of the original petition, it is alleged: “The defendant, Flint Explosive Company, was negligent in selling the defective fuse to the plaintiff without apprising him of the uneven distribution of the powder in the fuse which was well known to the 'Flint Explosive Company, there having been a number of other similar explosions resulting from said defective fuse sold by the Flint Company which facts were well known to the -Flint Company but unknown to the plaintiff.” This was an allegation :of fact which, if proved, tended to show the doing of a wilful act with knowledge that it was liable-to injure others, - with a disregard for the consequences, and thus was malicious. ■ I "think the amendments to the petition merely strengthened the caüse' of action for wilful and wanton mis*395conduct or negligence and did not unite another cause of action in the same count of the petition.
I think further that the specific facts alleged in the petition support the legal conclusion of the pleader that these facts amounted to wilful or wanton negligence, or misconduct. Edwards v. A. B. & C. R. Co., 63 Ga. App. 212, 220 (10 S. E. 2d, 449); Western & Atl. R. v. Reed, 33 Ga. App. 396, 404 (126 S. E. 393); Southern Ry. Co. v. Liley, 75 Ga. App. 489, 493 (43 S. E. 2d, 576). I do not think that the petition as amended is duplicitous and because some of the language used may be appropriate to an action for simple negligence does not necessarily make it such an action when the petition, construed as a whole, shows—-as I think it does—that it was an action for wilful and wanton negligence or misconduct. Duncan v. Ellis, 63 Ga. App. 687, 689 (11 S. E. 2d, 841). Nowhere in the petition as amended are the specific words, “simple negligence” used—this, of course, alone is not controlling—and I think that the plaintiff’s referring to a lack of due care and the use of the general term “negligence” does not necessarily mean simple negligence; and I think the context in which it is used plainly shows it means malicious, wilful, and wanton negligence. “Wilful and wanton negligence,” though it has been said by some of the appellate courts to involve a contradictory term, yet it has often been used in decisions of the appellate courts of this State to describe the higher or more aggravated form of negligence than gross negligence; and when so used it means a wilful determination not to perform a known duty, or a reckless disregard of the safety of others is manifested by the conscious and intentional omission of the care proper under the circumstances. Edwards v. A. B. & C. R. Co., supra., at page 219. Black’s Law Dictionary, in defining malicious injury states that it is “the wilful doing of an act with knowledge it is liable to injure am other and regardless of circumstances.” “Malicious injury”: is defined to be an injury committed wantonly and wilfully or without-cause. 20 Words & Phrases, p. 219.
I think the term “malicious injury” as here used in an action based upon the concurrent act of the defendants, is synonymous with that term as used in common-law conspiracy.
In Southern Railway Co. v. Davis, 132 Ga. 812, 818 (65 S.E. *396131), the case of Alabama Great So. R. Co. v. Hall, 105 Ala. 599 (17 So. 176), is quoted with approval as follows: “In an action to recover damages for injuries alleged to have been inflicted by reason of negligence, before the person charged with the negligence can be held guilty of wilful or wanton negligence the evidence must show that he knew his conduct would inflict injury, or that, on account of the attendant circumstances which were known to him or with knowledge of which he was chargeable, the inevitable and probable consequence of his conduct would be to inflict injury, and with reckless indifference to the consequences of such conduct he committed the act, or omitted to do his duty to avoid the threatened injury.”
Paragraphs 26, 27, 28, 29, 30, 31, and 32 of the petition as amended are merely allegations of the special facts which, I think, support the pleader’s conclusions that the du Pont Company maliciously, wilfully, and negligently procured the Flint Explosive Company to sell and distribute the explosives knowing that the Flint Explosive Company, its officers, and employees were unqualified to sell and distribute the explosives and to instruct this plaintiff in the safe and proper manner to use the same'.
Having stated in the foregoing paragraphs of this special concurrence that I construe both the original and amended petition to be for wilful and wanton negligence or misconduct, I do not think the court erred in overruling the demurrer to the last sentence in paragraph 27 as follows: “The defendants also failed to follow up the use of said explosive and caused and permitted thereby a series of accidents in the southwest Georgia area from the use of said articles.” Southern Ry. Co. v. Davis, supra, at page 819. However, if the original or amended petition had been for simple negligence, I think such allegation, should properly be stricken.
Under the authorities cited in the majority opinion, I think the court erred in overruling the defendants’ demurrer upon the question of the failure of the defendant Flint Explosive Company to obtain a license.