Akin v. Randolph Motors, Inc., 36709

• Decision Date: 17 May 1957
• Docket Number: No. 36709,No. 2,36709,2
• Parties: Lester AKIN v. RANDOLPH MOTORS, Inc., et al
• Court: Georgia Court of Appeals

Page 358

99 S.E.2d 358

95 Ga.App. 841

Lester AKIN v. RANDOLPH MOTORS, Inc., et al.

No. 36709.

Court of Appeals of Georgia, Division No. 2.

May 17, 1957.

Rehearing Denied May 29, 1957.

Syllabus by the Court.

1. (a) Errors in rulings on demurrer to pleadings which are later stricken in their entirety are immaterial.

(b) The petition here is not subject to demurrer on the ground that it is apparent therefrom that the plaintiff's injuries resulted solely from the negligence of a third party.

2. There being some evidence to show that the truck with which the defendant's automobile collided was in motion and proceeding in the same direction as the defendant, it was not error to charge the law relating to vehicles overtaking and passing while proceeding in the same direction.

3. The court properly refused to allow a police officer to testify as to which party had the right of way, as this would have been a conclusion of law and not proper evidence.

4. Where a single injury results from the concurrent negligence of two or more, the latter are tortfeasors and may be sued jointly or severally, and a recovery had against either or both. In such case the concurring negligence of one is no excuse or defense to the other.

5. Admissions against interest by parties to the record constitute original evidence, but admissions by a third party who is not a party to the action, and which do not come under one of the exceptions stated in the Code, are hearsay. The trial court properly excluded evidence of a plea of guilty to a traffic violation on the part of a third party not joined in the litigation and not appearing as a witness therein.

6. The general grounds of the motion for new trial, as well as the motion for judgment notwithstanding the verdict, were properly overruled by the trial court.

Randolph Motors, Inc., filed an action for damages in the Superior Court of Randolph County against Lester Akin, alleging in substance: that Akin, a nonresident, while driving his automobile through the city limits of Cuthbert, Georgia, collided with a truck which had been parked at the side of the street and which the driver was seeking to turn into the lane of traffic, and, after colliding with such truck, negligently proceeded across the street, collided with and demolished a parked automobile belonging to the plaintiff. Thereafter the petition was amended a number of times, one such amendment, admitted over objection, joining the Citizen's Bank of Cuthbert as a party plaintiff. The case proceeded to trial, was nonsuited, but was subsequently reinstated on motion of the plaintiff. Thereafter the plaintiff struck all the numbered paragraphs of its petition as amended (the amendment above referred to containing, just preceding it, the number '1') and refiled its petition in two counts. Demurrers to the petition as refiled were overruled, and a second trial resulted in a verdict for the plaintiff. The defendant filed his motion for new trial on the general grounds which was amended by the addition of 7 special grounds, and also a motion for judgment notwithstanding the verdict. Error is assigned on the denial of these motions and the overruling of various demurrers to the petition and its amendments.

T. T. Molnar, Cuthbert, for plaintiff in error.

Jesse G. Bowles, Cuthbert, for defendants in error.

TOWNSEND, Judge.

1. (a) Demurrer rulings on the petition and amendments thereto which were later stricken by the plaintiff have become immaterial and are accordingly not passed upon here. Central of Georgia Ry. Co. v. Inman & Co., 129 Ga. 652, 50 S.E. 784; Central of Georgia Ry. Co. v. Inman, Akers & Inman, 129 Ga. 656, 59 S.E. 786. Although it is contended that the Citizen's Bank of Cuthbert was erroneously made a party, and was continued as a party in the case, nothing in the pleadings from the time the 'numbered paragraphs of the petition as amended' were stricken indicates that the Citizen's Bank participated in the filing of pleadings or the trial of the case, although it was served by the plaintiff in error through its president, with a copy of the motion for new trial, and was joined as a defendant in error in this court. We accordingly hold that the overruling of demurrers adding the Citizen's Bank as a party by amendment, although erroneous, were thus rendered immaterial. That new parties cannot be added by amendment in such a case see Code, § 81-1303; Jones v. Watson, 63 Ga. 679, 680; McWilliams v. Anderson, 68 Ga. 772(2).

The original petition alleged that Randolph motors, Inc. owned the automobile in question and that it was in its possession. From amendments added but later stricken, and from evidence introduced on the trial of the case, it appears that the Citizen's Bank of Cuthbert had taken legal title to the automobile as security for the debt of a person who had purchased it from Randolph Motors, Inc., and that Randolph Motors, Inc. was surety for the payment of that debt. Obviously, then, Randolph Motors, Inc., and the Citizen's Bank were at no time coowners and the suit could not have been maintained by them jointly in any event, since one or the other, but not both, might claim title, depending upon the proof as to which party had repossessed the vehicle. As to the latter question, there was no dispute (except by proof of prior contradictory statements which were satisfactorily explained by the plaintiff) but that the automobile had been repossessed by the plaintiff, Randolph Motors, Inc., and title had accordingly vested in it. The Citizen's Bank of Cuthbert made no appearance or claim of interest in the automobile. The verdict of the jury, containing the words 'we find for the plaintiff' obviously referred to Randolph Motors, Inc. The record shows that this case was tried upon the theory that there was only one plaintiff, and the only logical conclusion from these facts is that Randolph Motors, Inc., after erroneously attempting to join the Citizen's Bank of Cuthbert, intended to and did strike this amendment together with all the others and the original petition at the time the petition in two counts was filed, excepting only the names of the parties as they originally appeared.

From the ruling herein made it follows that no reversible error appears either in the rulings on demurrer, or in regard to the charge of the court in this connection, which is assigned as error in special ground 2 of the motion for new trial, or the testimony that title was in the plaintiff, assigned as error in ground 6.

(b) Count 1 of the petition alleges in substance: that the plaintiff, driving a 1951 Buick, was proceeding north on Court Street; that after passing the intersection of Court and Church Streets the defendant increased his speed sharply to about 25 miles per hour; that he was driving extremely close to the right side of the street and the outer edge of a pickup truck parked on the street; that when he reached a point near the position of the truck, its driver pulled away from the curb with the front end of the truck a distance of approximately two feet from the curb; that had defendant turned his automobile one foot to the left he could have avoided hitting the truck but he failed to do so; that instead he drove the right front fender of his automobile into the left front fender of the truck, and after the impact turned his automobile to the left, sharply accelerated his speed, crossed the center line of the street, and drove his automobile a distance of approximately 100 feet to the west side of the highway where he struck the plaintiff's 1946 Ford which had been parked in a legal manner parallel to the west curb of said street, knocking it up over the curb and into a telephone pole. Count 2 alleges that after the first impact the defendant negligently removed his hands from the steering wheel, went over in the seat of the automobile so that from the position in which he placed himself he could not see to steer, abandoned control of the steering apparatus and immediately accelerated his speed, whereupon the automobile proceeded across the center line of the highway and struck the parked vehicle as above set out. Both counts allege negligence in failure to have control of the automobile at all times, negligently driving against the parked automobile of the plaintiff, crossing over the center line, failing to apply brakes, failing to steer the automobile so as to avoid the pickup truck and the plaintiff's automobile, and other particulars, and count 2 expressly alleges negligence in removing his hands from the steering wheel and placing himself in such position as not to see how to control the course of the automobile. The various general and special demurrers contend generally that the petition and its various parts show on their face that the first impact was caused by the negligence of a third party in turning into the defendant's path, and, under these circumstances, no negligence is alleged against the defendant since from the state of facts set forth it appears that the defendant, after being hit by the truck, had no control over his Buick and could not have prevented the second collision. The rulings on neither the general nor special...