Peek v. Fields

Pannell, Judge. 1. Where general and special demurrers to a petition are overruled and no exception is taken thereto, the judgment on demurrer concludes the parties upon all questions necessarily involved in the decision of the points raised on demurrer (Gibson v. Mason, 31 Ga. App. 584 (2) (121 SE 584); Quarterman v. Godwin, 34 Ga. App. 201 (129 SE 14)), and if the plaintiff offers substantial proof of her allegations she is entitled to recover. Pierpont Mfg. Co. v. Mayor &c. of Savannah, 153 Ga. 455, 457 (112 SE 462). 2. The petition here, seeking recoveiy for injury suffered when plaintiff was run into by defendant’s dog which was chasing a truck, as was its habit, was demurred to generally, and special demurrers were filed to crucial language on the grounds that such language was a conclusion of the pleader with no facts alleged to sustain them. These demurrers were overruled and no appeal had therefrom. The plaintiff substantially proved her case as laid including the facts alleged in her petition upon which the alleged “conclusions” were based. The trial court erred, therefore, in directing a verdict for the defendant. See Howard v. C. & S. Bank, 32 Ga. App. 22 (122 SE 717); Branan v. LaGrange Truck Line, 94 Ga. App. 829, 845 (96 SE2d 364). Judgment reversed. Felton, C. J., and Frankum, J., concur.