Smith v. Floyd County

Stephens, J. 1. The test of the sufficiency of a petition as against a general demurrer is whether the defendant can admit all the allegations made therein and escape liability. If the petition in the instant case sets forth a cause of action either for the recovery of damages as for the maintenance of a nuisance, or for a recovery under that provision of the constitution which declares that private property shall not be taken or damaged for public purposes without just and adequate compensation first being paid, it will withstand a general demurrer and it will not be the duty of this court, in passing upon the exceptions to the judgment sustaining the general demurrer, to construe the petition, for the purpose of determining the exact character of the cause of action relied on. Citizens & Southern Bank v. Union Warehouse & Compress Co., 157 Ga. 434 (9) (122 S. E. 327); Vandalsem v. Caldwell, 33 Ga. App. 88 (7) (125 S. E. 716). 2. As against a general demurrer, the petition sufficiently alleged that the street and avenue therein referred to were public highways, and, though not so called, were public roads, under the control and supervision of the county; and it being further shown therein that in raising the grade of these two roads, and in laying and arranging the new sewer-pipe, the county caused large quantities of rainwater to be diverted on to the plaintiff’s property with resulting damage, and it further appearing that the plaintiff had presented his claim to the county within twelve months, as required by section 411 of the Civil Code (1910), and that payment of the claim had been refused, tlie petition set forth a cause of action for the recovery of damages under provision of the constitution that private property shall not be taken or damaged for public purposes, without just and adequate compensation being first paid. Civil Code (1910), § 6388; Bates v. Madison County, 32 Ga. App. 370 (2) (123 S. E. 158); Westbrook v. Baldwin County, 121 Ga. 442 (49 S. E. 286); Terrell County v. York, 127 Ga. 166 (56 S. E. 309); Marion County v. Short, 145 Ga. 404 (89 S. E. 324); Adkins v. Crawford County, 135 Ga. 679 (70 S. E. 335). (a) Under this construction, the plaintiff properly claimed as his measure of damages the actual depreciation in the market value of the .property, caused by the wrongs complained of Smith v. Floyd County, 85 Ga. — 555 — 420 (3) (77 S. E. 850); Sheppard v. Georgia Ry. & Power Co., 31 Ga. App. 653 (121 S. E. 868). Decided March 5, 1927. 3. The petition, under the allegations, is also susceptible of the construction that it is a suit for damage caused by the maintenance of an alleged nuisance, and even under this construction was not subject to the general demurrer. The fact that the petition may not have laid the correct measure of damages under the latter construction was no cause for dismissing it, in the absence of a special demurrer attacking the petition on that ground. Nalley v. Carroll County, 135 Ga. 835 (70 S. E. 788); Bank of Bullochville v. Riehle, 36 Ga. App. 470 (137 8. E. 642). and cit. 4. Where a petition is duplicitous and may be construed as setting forth a cause of action, either as an action for damages for the maintenance of an alleged nuisance, or because of the county’s damage to the plaintiff’s private property for public purposes without first paying the plaintiff therefor, and where there is no special demurrer objecting to the petition because of such duplicity, the plaintiff may at the trial elect as to the character of the action he will rely upon. Citizens & Southern Bank v. Union Warehouse & Compress Co., supra. 5. As a general rule, “where two or more persons or corporations, acting independently, without concert, plan, or other agreement, inflict a damage or cause an injury to another person, the persons inflicting the damage are not jointly liable therefor, but each is liable for his proportion only of the damages; and in such case a joint action against them can not be maintained.” Armstrong v. Southern Ry. Co., 29 Ga. App. 418 (116 S. E. 31). “But it is also true that, even though voluntary, intentional concert is lacking, if the sep.arate and independent acts . . of several combine naturally and directly to produce a single injury, they may be sued jointly, despite the fact that the injury might not have been sustained had only one of the acts . . occurred . . Thus, where two concurrent causes naturally operate in causing an injury, there can be a recovery against both or either one of the responsible parties.” Scearce v. Mayor &c. of Gainesville, 33 Ga. App. 411 (3) (126 S. E. 883). 6. Applying these rulings, the petition was not subject to any ground of the demurrer interposed, and the court erred in dismissing the same. Judgment reversed. Jenkins, P. J., and Bell, J., concur. Porter & Mebane, for plaintiff. Denny & Wright, Graham Wright, Seward M. Smith, Lamar Gamp, L. A. Dean, for defendants.