Hayes v. Simpson
| Decision Date | 19 October 1950 |
| Docket Number | No. 33241,No. 2,33241,2 |
| Citation | 62 S.E.2d 441,83 Ga.App. 22 |
| Parties | HAYES v. SIMPSON |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
(a) Where a demurrer to a petition is sustained and the judgment thus entered is unexcepted to, the same becomes the law of the case.
(b) Where judgment on such demurrer is entered up dismissing the case in praesenti unless the plaintiff amend to meet a specified defect within a given period of time, and no amendment meeting and curing the defect is filed, and no exception taken to the order, it is error for the trial court to refuse, after the time for amendment has passed, to strike the case from the docket upon motion of the opposite party. See Gamble v. Gamble, 193 Ga. 591, 19 S.E.2d 276.
John Garlington Simpson, herein referred to as the plaintiff, brought suit against Doyle Hayes, doing business as the Hayes-Nash Motor Company, in the Superior Court of Whitfield County for damages resulting from a collision between a Ford automobile belonging to the plaintiff and a wrecker belonging to the defendant. The petition alleged in substance that the wrecker was parked on the west side of Highway 41, approximately five miles north of Calhoun, Georgia, headed in a southerly direction, without flares or signals to indicate its presence; that the plaintiff was driving at about 45 miles per hour along the west side of said highway and in his own lane of traffic; that only the right wheels of the wrecker were on the shoulder of the road; that said highway is heavily traveled; that because of approaching traffic the plaintiff could not cross into the opposite traffic lane and pass the wrecker; that the road was wet, the weather misty and visibility poor, and that when the plaintiff first saw the wrecker his car was approximately 45 feet from it; that the plaintiff immediately applied his brakes but there was not sufficient time to stop his car before colliding with the wrecker. The petition further specified the foregoing acts of the defendant as negligence and set out the damages incurred.
To this petition the defendant demurred on the grounds (1) that the allegations do not set out a cause of action, and (2) they affirmatively show the plaintiff's injury and damage were caused solely by his own negligence or want of ordinary care. After hearing, the judge passed the following order: 'It is hereby ordered and adjudged that said general demurrer is sustained and petition dismissed unless amended within 10 days to meet the criticism of said demurrer.' Within this 10 day period the plaintiff offered the following amendment: 'The headlights of the automobile of the plaintiff were on and burning at the time of the collision and had been burning from the time the plaintiff left Chattanooga.'
After the expiration of the 10 day period, the defendant moved to strike the case from the docket of the court, and the overruling of this motion is assigned as error.
Mitchell & Mitchell, Dalton, for plaintiff in error.
Wm. B. Spann, and Alston, Foster, Sibley & Miller, all of Atlanta, Pittman, Hodge & Kinney, Dalton, for defendant in error.
TOWNSEND, Judge (after stating the foregoing facts.)
As to the necessity of sustaining a motion to strike a case from the docket where a general demurrer has been sustained and the case dismissed unless within a specified time an amendment is offered curing the defect, it is held in Gamble v. Gamble, 193 Ga. 591, 595, 19 S.E.2d 276, 278 as follows:
It is not within the province of this decision to determine whether or not the trial court correctly sustained the general demurrers in the first instance, since this judgment, not having been excepted to, is now the law of this case. It must therefore be accepted as true that the petition as originally filed affirmatively shows, when construed most strongly against the pleader, that the plaintiff's own negligence and want of ordinary care was the proximate cause of the injury and damage. The plaintiff in his original petition set out facts showing that the wrecker blocked his side of the highway; that when he first saw it he was 45 feet from it; that he immediately applied his brakes but in spite of this collided with it. The collision might presumably have been avoided in one of two ways--either to pass around the wrecker, or to stop before colliding with it. The plaintiff alleged that he was unable to pass around the wrecker because of approaching traffic. He did not allege that he was unable to see the obstacle in his path in time to stop or otherwise show why he was unable to stop. The amendment merely alleged that the plaintiff's headlights were burning. This cannot be said to meet the criticism of the general demurrer that 'the allegations affirmatively show that the injury and damage for which the plaintiff sues were caused solely by his own negligence or want of ordinary care.' Nothing in the amendment, if the petition originally showed lack of ordinary care and that the plaintiff's damage was proximately caused by his own negligence, changes that state of facts, it still not being shown why the plaintiff was unable to stop his car, and the petition as it now stands with the amendment must be held to continue to be subject to the same defect. It has frequently been held to be negligence to drive a car at such a speed that one is unable to...
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...184 S.E. 381; Pollard v. Clifton, 62 Ga.App. 573(1), 9 S.E.2d 782; Bassett v. Callaway, 72 Ga.App. 97, 33 S.E.2d 112; Hayes v. Simpson, 83 Ga.App. 22, 62 S.E.2d 441. However, the cases of Crawford v. W & A Railroad, 51 Ga.App. 150, 179 S.E. 852; Bach v. Bragg Bros. & Blackwell, 53 Ga.App. 5......
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...within the time allowed by the court failed to add any relevant and material matter. After a decision to that effect in Hayes v. Simpson, 83 Ga.App. 22, 62 S.E.2d 441 the plaintiff again attempted to amend, long after the time for amendment had run out, and the situation was then just as th......
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General Motors Corp. v. Jenkins, 43165
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