Fricks v. Cole, 40476
| Citation | 135 S.E.2d 512,109 Ga.App. 143 |
| Decision Date | 14 February 1964 |
| Docket Number | No. 40476,No. 1,40476,1 |
| Parties | Alfred N. FRICKS et al. v. Marvin C. COLE |
| Court | United States Court of Appeals (Georgia) |
Syllabus by the Court
1. The exception to the overruling of the special demurrers is expressly abandoned.
2. The plaintiff's petition set forth a cause of action, and the trial court did not err in overruling the defendants' general demurrer.
3. An order overruling objections by the defendants and the claims manager of the defendants' purported insurer to the
plaintiff's interrogatories directed to the claims manager was an interlocutory order not subject to direct appeal for the reason that it cannot be known whether or not the interrogatories, or some of them, will be admitted in evidence until they are offered as evidence, hence it cannot be determined whether or not harmful error will result.
Marvin C. Cole brought an action against Alfred N. Fricks and George A. Fricks for damages caused by the defendants' alleged negligence. The material allegations of the petition are substantially as follows: On December 21, 1961, at approximately 9 a. m., the plaintiff was driving a truck on his regular dry cleaning pickup route through the subdivision known as Sherwood Forest in Floyd County, Georgia. The plaintiff brought the truck to a full stop on Lionel Lane at the point of its dead-end intersection with Robin Hood Road, a through street running approximately in a north-south direction. Before entering Robin Hood Road, the plaintiff looked both ways along said road for oncoming traffic. The visibility to the plaintiff's right was about 400 yards, but that to his left was only about 200 yards, the road in that direction going uphill and curving. No oncoming traffic being visible, the plaintiff drove the truck into Robin Hood Road, which was about 18 feet wide, with the intention of angling slightly across said road and entering a driveway which intersected Robin Hood Road at a point approximately five feet south of Lionel Lane. After the plaintiff had crossed Robin Hood Road and as the front tires of the truck were entering the driveway, the truck was struck a violent blow at the left rear wheel by the right front of a 1961 Pontiac Tempest automobile owned by defendant Alfred N. Fricks and maintained by him for the use, comfort and pleasure of his family, including his 18 year old son, defendant George A. Fricks, who was driving at the time of the collision. The automobile approached from the plaintiff's left-hand, or northerly, side at the unlawful speed of 50 miles per hour, the lawful speed limit being 25 m. p. h. Notwithstanding there were no obstructions in the western half of the roadway and sufficient room for the automobile to pass in, defendants' automobile collided with the truck while it was entirely within the eastern half of the road. The place of the collision is within a heavily populated residential subdivision and Robin Hood Road is a narrow, winding and rough surface street. Defendant George A. Fricks resided on Robin Hood Road and was familiar with the area in question, having driven along it on numerous occasions. The negligence of the defendant driver, George A. Fricks, which is imputed by operation of law to the defendant owner, was the sole, direct and proximate cause of the plaintiff's injuries and consisted of the following particulars: (a) negligence per se in driving said automobile at a speed in excess of 25 m. p. h., in violation of Code Ann. § 68-1627; (b) negligence per se in driving at a speed greater than was reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing, in violation of Code Ann. § 68-1626; (c) negligence per se in failing to so control the automobile's speed to avoid colliding with the truck, in violation of Code Ann. § 68-1626; (d) negligence per se in failing to drive upon the right half of the road, in violation of Code Ann. § 68-1633; (e) failing to drive along the right side of the road behind the plaintiff's truck, thereby avoiding striking the truck; (f) failing to keep the automobile under control sufficiently to avoid colliding with the truck. The plaintiff incurred certain alleged injuries to his head, neck, chest and back which required surgery and various medical expenses and caused pain and suffering and permanent impairment of his ability to labor.
The defendants filed general and special demurrers and in answer to the petition. Before the court ruled on the demurrers, the plaintiff filed a notice of interrogatories to be submitted to Paul J. Sorrells, Claims Manager of Cotton States Mutual Insurance Company, to which the defendants filed their timely objections to the interrogatories. The court overruled the general and special demurrers and all of the 14 objections to the interrogatories excepting number 12, to which judgments the defendants except.
Parker, Clary & Kent, Horace T. Clary, Rome, for plaintiffs in error.
Wright, Walther & Morgan, Clinton J. Morgan, Rome, for defendant in error.
1. The plaintiffs in error expressly abandoned their exception to the judgment overruling their special demurrers.
2. Code Ann. § 68-1626 requires that the driver of every vehicle shall drive at an appropriately reduced speed when approaching and crossing an intersection, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, and when special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway...
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