General Motors Corp. v. Jenkins, 43165

• Court: Georgia Court of Appeals
• Writing for the Court: J. KELLEY QUILLIAN; FELTON, C.J., and DEEN; JORDAN; I am authorized to state that EBERHARDT; PANNELL; DEEN; I am authorized to state that FELTON
• Citation: General Motors Corp. v. Jenkins, 160 S.E.2d 906, 117 Ga.App. 527 (Ga. App. 1968)
• Decision Date: 14 March 1968
• Docket Number: 3,No. 43165,Nos. 1,2,43165,s. 1
• Parties: GENERAL MOTORS CORPORATION v. Lone JENKINS, by Guardian

Page 906

160 S.E.2d 906

117 Ga.App. 527

GENERAL MOTORS CORPORATION v. Lone JENKINS, by Guardian.

No. 43165.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

March 14, 1968.

Rehearing Denied March 29, 1968.

Syllabus by the Court

Under the provisions of Code § 3-510 the plaintiff could not dismiss his action if such dismissal would prejudice any right of the defendant.

In a tort action Ione Jenkins, by guardian Nellie Jenkins, filed suit against General Motors Corporation and Marlow Daniels and Arthur R. Daniels, d/b/a Daniels Chevrolet Company, in Fulton Superior Court. The first petition filed on January 23, 1963, was amended by striking its contents and filing a rewritten petition. On September 25, 1964, the court sustained the general demurrers and granted the plaintiff 30 days to amend. The plaintiff amended the petition and the defendant filed demurrers and a motion to strike on the ground that the amendment had not met the criticism of the demurrers. The trial court overruled the demurrers and motion and the defendant appealed.

On appeal the ruling on the demurrers was in part reversed. General Motors Corp. v. Jenkins, 114 Ga.App. 873, 152 S.E.2d 796. This court held that the petition failed to set forth a cause of action against General Motors Corporation. The plaintiff then filed an amendment to the petition on January 19, 1967, which was prior to the remittitur being transmitted to the superior court. After the remittitur was transmitted and filed in the superior court but prior to the judgment being entered thereon, the plaintiff filed a subsequent amendment which was identical to the one filed on January 19, 1967. The amendments were allowed over the objection of General Motors Corporation. Sometime after the remittitur was made the judgment of the superior court, another amendment was filed which struck the original petition, as amended, except for the prayers and substituted in its stead a completely new petition. This amendment was also allowed over objection.

General Motors Corporation filed a general demurrer to the petition as amended which was overruled. General Motors Corporation then appealed from the judgments overruling its objections to each of the amendments and general demurrers to the petition as amended. While the case was pending in this court, the appellee moved to dismiss the appeal and in support of the motion submitted an affidavit of the Deputy Clerk of Fulton Superior Court, stating that the plaintiff had dismissed the petition.

King & Spalding, Charles H. Kirbo, R. Byron Attridge, John C. Staton, Jr., Atlanta, for appellant.

Samuel D. Hewlett, Jr., Atlanta, Thomas M. Odom, Millen, George W. Fryhofer, Waynesboro, Cullen M. Ward, Atlanta, for appellee.

J. KELLEY QUILLIAN, Judge.

Code § 3-510 (now repealed but in effect in the case sub judice) provides in part: 'The plaintiff in any action, in any court, may dismiss his action either in vacation or term time, if he shall not thereby prejudice any right of the defendant, and if done in term time, the clerk of court or justice of the peace shall enter such dismissal on the docket.'

Therefore, the question for determination is whether the plaintiff's voluntary dismissal of the petition at this stage of the proceedings would prejudice any right of the defendant. The decision of this court in the prior appearance of this case, General Motors Corporation v. Jenkins, 114 Ga.App. 873, 152 S.E.2d 796, supra, was an adjudication that the petition as amended did not set forth a cause of action against General Motors Corporation. Hence, if the petition as amended did not set forth a cause of action, the amendment which was filed to the original petition did not meet the criticism of the original general demurrer which was sustained with leave to amend within 30 days. This being established, under Simpson v. Hayes, 208 Ga. 754, 69 S.E.2d 567, the amendment not containing the necessary allegations to meet the criticisms of the original general demurrer, it was the same as filing no amendment, and this court's prior holding had the same effect as if the trial judge had sustained the general demurrer without leave to amend and that judgment had been affirmed by the appellate court without direction or condition. Peacock Construction Co. v. Chambers, 223 Ga. 515, 156 S.E.2d 348.

In Simpson v. Hayes, 208 Ga. 754, 756, 69 S.E.2d 567, supra, factually similar to the present case, appears the following language: 'After the amendment was filed, the defendant, on July 17-taking the position that the amendment had not met the criticism of the general demurrer-moved to strike the case from the docket. The trial judge overruled this motion, the effect of this ruling being that the judge construed the amendment as meeting the criticism of the demurrer. Exceptions to this ruling were taken, and the Court of Appeals reversed the trial judge Hayes v. Simpson, 83 Ga.App. 22, 62 S.E.2d 441, holding that the amendment did not cure the defect asserted by the demurrer. It was thus determined that the plaintiff had not amended his petition to meet the grounds of demurrer. The amendment, not containing the necessary allegations to re-instate the case, was the same as filing no amendment, and it thus remained dismissed as of the date of the court's order and no part of the case was then pending. The ruling of the Court of Appeals that the proffered amendment was not sufficient to re-instate the case became the law of the case. City of Atlanta v. Smith, 165 Ga. 146(1), 140 S.E. 369, and citations. It had the same effect as if the trial judge had dismissed the case, and is controlled by the rule that, after a general demurrer to a declaration has been sustained and the cause dismissed by the lower court, and that judgment affirmed by the appellate court without condition or direction, the declaration is not amendable, as in Central R. & Bkg. Co. v. Paterson, 87 Ga. 646, 13 S.E. 525 (Citations.) It does not come under the rule that, where a judgment overruling a demurrer to a petition has been reversed by the appellate court, an amendment may be filed before the appellate-court judgment is made the judgment of the lower court, as in Owens v. Owens, 190 Ga. 191, 8 S.E.2d 644, and citations, because under that circumstance the case is still pending in the lower court.'

The adjudication of this court that the amendment did not meet the criticism of the demurrer became the law of the case and was a substantial right within the meaning of Code § 3-510. Therefore, the attempted dismissal, without leave of the court, was completely ineffectual and the case remains in the breast of this court.

The trial judge erred in allowing the amendments and in overruling the general demurrer as to General Motors Corporation.

Judgment reversed.

BELL, P.J., and HALL and WHITMAN, JJ., concur.

JORDAN, P.J., and EBERHARDT and PANNELL, JJ., concur specially.

FELTON, C.J., and DEEN, J., dissent.

JORDAN, Presiding Judge (concurring specially).

The question, simply stated, is whether or not the plaintiff's case was pending in the trial court at the time she attempted to dismiss. Prior opinions of both this court and the Supreme Court have clouded the issue and hence this special concurrence in order to again review the situation.

In my opinion not just any amendment filed to the petition prior to the remittitur being made the judgment of the trial court revives the cause of action so as to make it a pending cause. This is only true where the amendment cures the defect pointed out by reviewing court. If as a matter of law it does not, then the cause of action is no longer pending and all further proceedings are nugatory, and subsequent dismissal by the plaintiff would prejudice the rights of the defendant.

In the previous appearance of this case (General Motors Corp. v. Jenkins, 114 Ga.App. 873, 152 S.E.2d 796) we said 'Where a vehicle is brought to an automobile dealer by its owner for the purpose of having it repaired and the owner reveals to the dealer the fact that there is a dangerous defect in the vehicle, the failure of the dealer to discover and correct the defect when he could have done so by the exercise of ordinary care relieves the manufacturer of liability, unless the manufacturer should have foreseen that a dealer might fail to discover and remedy the defect by the exercise of ordinary care. The petition in this case fails to make this one allegation which would bring the manufacturer's liability into being,' and went on to hold that the trial court therefore erred in overruling the general demurrer of General Motors Corporation. After this ruling and before the remittitur was made the judgment of the trial court it is clear that the plaintiff had a right to amend or dismiss the petition. Here the plaintiff sought to amend and timely filed the following amendments, identical but on different dates, to wit: 'That defendant General Motors Corporation should have foreseen that defendant Daniel Chevrolet Company might fail to discover the remedy and defects herein alleged, by the exercise of ordinary care, particularily since defendant General Motors Corp. was itself negligent and should have anticipated that the defendant Daniel Chevrolet Company might likewise be negligent as herein alleged.'

No new facts were alleged on which to base the conclusion stated in the proffered amendment and under the ruling of the Supreme Court in Gordon County Broadcasting Company v. Chitwood, 212 Ga. 21, 90 S.E.2d 5, it is clear that the amendment here tendered was inadequate and should have been stricken on demurrer. In that case the Supreme Court said: 'It will be seen that petitioner has added by amendment, and in the same terms, what this court said was lacking in the petition when it was previously before this court. It is contended that, since the petitioner has added what the court said was lacking before, the petition now sets out a cause of action and that...