Childs v. Southern Railway Co.

Where an assignment of error in a direct bill of exceptions is based solely on the ground that the verdict and judgment were contrary to law because of an antecedent ruling upon a special demurrer to the petition, the assignment is fatally defective where it fails to allege that such ruling necessarily controlled the verdict and judgment, and where the record fails to show that the verdict and judgment were so controlled.

DECIDED JULY 11, 1941. Childs sued the Southern Railway Company for the alleged negligent homicide of his wife at a railroad crossing. The petition contained 27 paragraphs, and paragraph 27 contained subparagraphs (a), (b), (c), (d), (e), (f), (g), and (h). Said subparagraphs (f), (g) and (h) were stricken on special demurrer, and that ruling was excepted to pendente lite and assigned as error in the bill of exceptions. The case proceeded to verdict and judgment for the defendant, and that ruling was assigned as error in a direct bill of exceptions, no motion for new trial being made. The assignment of error on the ruling upon the demurrer was as follows: Plaintiff in error "alleges that the order of the court sustaining said grounds of demurrer, as set out in said exceptions pendente lite, was contrary to law, and he assigns error on said ruling . . as being contrary to law." The assignment of error on the final judgment reads as follows: Plaintiff in error "assigns error upon said verdict of the jury and the judgment of the court entered thereon as being contrary to law. He alleges that because of the ruling on said demurrer he was deprived of proving said allegations of negligence stricken from his pleadings, and that the verdict and judgment, rendered after said demurrer was erroneously sustained, were contrary to law."

In Federal Land Bank v. U.S. Fidelity c. Co., 188 Ga. 138 (2 S.E.2d 916), the court ruled as follows: "In order for the court to be empowered to pass upon an assignment of error, where there has been a verdict and no motion for new trial, the antecedent ruling, under the terms of the Code, § 6-804, must have been one which necessarily controlled the verdict, judgment or decree." See also, to the same effect, McRae v. Boykin,50 Ga. App. 866 (179 S.E. 535), and McDaniel v. AtlantaCoca-Cola Co., 60 Ga. App. 92, 98 (2 S.E.2d 810). In theFederal Land Bank case, supra, the court said: "The ruling sustaining the plaintiff's demurrer addressed to several portions of the bank's answer did not necessarily control the verdict or decree. The whole answer was not stricken. The case was not in default. The court did not by its ruling take the case away from the jury. They [the rulings] may have `entered into and affected the further progress of the case' (and this is the language of the plaintiff in error, taken from the case of Lyndon v. Georgia Railway Electric Co.,129 Ga. 353, 58 S.E. 1047); but antecedent rulings must have been such as did necessarily control the verdict and decree. The ruling in the Lyndon case did not deal with the question whether the antecedent ruling was controlling, but only with the sufficiency of the assignment of error on the final judgment. In order to come within the provision of the Code, § 6-804, the rulings on the demurrer must not only have in some degree entered into and affected the further progress of the case, but must have been such rulings as necessarily controlled the verdict and final decree." It will be observed that the Supreme Court in that case clearly distinguished the ruling there made from the ruling in the Lyndon case, and the same distinguishment applies to the instant case, where the assignment of error on the final judgment is sufficient, but where the assignment of error on the antecedent ruling on the special demurrer was insufficient in that it did not allege, nor did the record show, that the sustaining of the demurrer necessarily controlled the verdict and the final judgment. As said by the Supreme Court in the FederalLand Bank case, supra; "It makes no practical difference whether, under this record, the proper judgment to be rendered is one of affirmance or dismissal. The result is the same."

Judgment affirmed. Gardner, J., concurs.