G. & R. Waterproofing Co. v. Brogdon

• Decision Date: 07 July 1961
• Docket Number: 38865,No. 1,Nos. 38864,s. 38864,1
• Citation: 104 Ga.App. 112,121 S.E.2d 77
• Parties: G. & R. WATERPROOFING COMPANY, Inc. v. R. F. BROGDON. G. R. WATERPROOFING COMPANY, Inc. v. Berta L. BROGDON
• Court: Georgia Court of Appeals

Page 77

121 S.E.2d 77

104 Ga.App. 112

G. & R. WATERPROOFING COMPANY, Inc. v. R. F. BROGDON.

G. R. WATERPROOFING COMPANY, Inc. v. Berta L. BROGDON.

Nos. 38864, 38865.

Court of Appeals of Georgia, Division No. 1

July 7, 1961.

Syllabus by the Court

It is proper to overrule a general demurrer of one of the joint defendants to a petition for alleged concurrent negligence, when the allegations on their face do not indisputably show that this defendant's alleged negligence did not combine naturally with the negligence of the other defendant to produce the injuries sued for.

The plainitiffs (defendants in error on appeal) in these cases are Bertie F. Brogdon and R. F. Brogdon, her husband. These plaintiffs brought separate actions against Mrs. Thelma Brown, Harry R. Murph, and G & R Waterproofing Co., Inc. as joint defendants (the two last named defendants being plaintiffs in error on this appeal). Mrs. Brogdon sought damages for personal injuries. Mr. Brogdon sought damages for loss of services, aid, assistance, and companionship of his wife and for expenses resulting from her injuries. The trial court overruled general demurrers filed by Harry R. Murph and G & R Waterproofing Co., Inc. to both petitions. These defendants excepted in both cases.

Bouhan, Lawrence, Williams, Levy & McAlpin, Frank W. Seiler, Kirk McAlpin, Savannah, for plaintiff in error.

Pierce, Ranitz & Lee, Dennis Pierce, Jack K. Berry, Brannen, Clark & Hester, F. Robert Raley, Savannah, for defendant in error.

HALL, Judge.

The issues in the two appeals are identical.

The allegations of each petition essential to our decision are in substance the same. In this opinion, therefore, all the discussion will relate to both petitions and both plaintiffs.

Essentially the allegations of the petition are: The car in whcih plaintiff was a passenger and the truck driven by the defendant Murph (in the business of the defendant G & R Waterproofing Co., Inc. were approaching an intersection in opposite directions; as the car in which plaintiff was riding approached the intersection, defendant negligently drove his truck to the left and across the centerline of the highway and brought it to a stop in the traffic lane along which was traveling the car driven by defendant Brown, in which petitioner was riding. When defendant Murph drove the truck into this traffic lane defendant Brown did not have her car under control and did not immediately apply her brakes, swerved and ran off the road to avoid striking the stopped truck, and then in attempting to swerve back into the highway lost control of her car. Defendant Brown was negligent, in not having her car under control and in failing to reduce her speed as she approached the intersection and the truck and as the defendant Murph started turning and turned the truck, in failing to apply her brakes and stop, etc. Defendant Murph was negligent in driving his truck across the centerline and into the path of the Brown car, and in failing to give a signal for a left turn into, and stop in, the northbound traffic lane.

Plaintiffs in error rely heavily on cases dealing with static negligence and alternative pleading. Because of the striking differences in the cases cited by plaintiffs in error, both as to their facts and the appropriateness of these theories to them, they are not applicable or controlling in the case sub judice.

In the allegations of the present petition we can see no alternative or ambiguous pleading, or indication that the alleged negligence of the defendant Murph had become static. The natural meaning is that the alleged negligent acts and omissions of both defendants Brown and Murph occurred in continuous sequence and were naturally and probably connected with each other. The allegations certainly present issues as to whether defendant Murph's alleged acts of negligence set in motion defendant Brown's alleged negligence which followed them; whether without defendant Murph's negligence defendant Brown's subsequent negligence would have occurred at all; whether defendant Murph should have foreseen consequences of his alleged negligence such as what allegedly happened; whether defendant Brown's negligence was a concurrent cause or an independent intervening cause of plaintiff's injuries, or whether the accident would have happened without the cooperation of the two alleged causes.

These issues must be determined by a jury rather than as matters of law. McGinnis v. Shaw, 46 Ga.App. 248, 167 S.E. 533; Long Construction Co. v. Ryals, 102 Ga.App. 66, 115 S.E.2d 726. If the plaintiffs in error thought more particular allegations as to intervals of time or other conditions were needed, they could have asked for these by special demurrers. We cannot in considering the general demurrer make inferences as to these particulars from allegations struck and changes made by amendment to the original petition, nor by giving a strained construction to the petition as amended. Toler v. Goodin, 200 Ga. 527, 535, 37 S.E.2d 609; New Cigar Co. v. Broken Spur, 103 Ga.App. 395, 399, 119 S.E.2d 133. If we read into the petition the fact that the weather was clear and vision...