Moore v. Bryan

• Decision Date: 16 December 1935
• Docket Number: No. 24937,24937
• Citation: 52 Ga.App. 272,183 S.E. 117
• Parties: MOORE . v. BRYAN et al.
• Court: Georgia Court of Appeals

52 Ga.App. 272

183 S.E. 117

MOORE .

v.BRYAN et al.

No. 24937

Court of Appeals of Georgia, Division No. 2.

Dec. 16, 1935.

.

Syllabus by the Court.

1. The right to amend is very liberal; and where an amendment in substance is sought to a petition containing enough to amend by, even though the original petition might not set out a cause of action unless amended, the amendment being germane to the original petition, and not coming too late, and not seeking to add a new and distinct cause of action, it should have been allowed.

2. Where suit is brought against two or more defendants jointly liable to the plaintiff, one of whom resides in the county where the suit is brought, the court has jurisdiction of the other defendants, who are nonresidents of the county, where the resident defendant is liable in the action.

3. The petition in this case, as amended, set out a cause of action against all the defendants, even though the defendants owed the plaintiff different degrees of care; the resident defendant being chargeable only with gross negligence, and the other defendants with negligence; the plaintiff being a guest in the automobile of the resident defendant.

4. Under the allegations of the petition, the plaintiff was not a passenger in the automobile of the defendant Bryan, within the meaning of that term as contended for by the plaintiff, but was riding therein as an invited guest. It was therefore essential that the plaintiff plead and prove gross negligence as \o this defendant, in order to be entitled to recover against him.

5. The petition, as amended, set out a cause of action.

Error from Superior Court, Fulton County; John D. Humphries, Judge.

Petition by H. L. Moore against C. A. Bryan and others. To review a judgment dismissing the petition on general demurrer, plaintiff brings error.

Reversed.

O. C. Hancock, of Atlanta, for plaintiff in error.

Bryan, Middlebrooks & Carter and Smith, Smith & Bloodworth, all of Atlanta, and O. E. Bright, and Perry Bran-nen, both of Savannah, for defendants in error.

SUTTON, Judge.

Moore brought suit against Bryan, Byck, and the Byck Electric Company, seeking damages on account of injuries alleged to have been the result of the joint and concurrent negligence of the defendants Bryan and Byck; the negligence of the latter being chargeable to the corporate defendant. The plaintiff makes substantially the following allegations inhis petition: He was riding as a guest in a Plymouth automobile driven by the defendant Bryan, and was proceeding along the highway at an unlawful rate of speed at the time in question. A Chevrolet automobile belonging to the Byck Electric Company and driven by the defendant Byck, the authorized agent of said company, was approaching from the opposite direction, and it also was being driven at the time at an unlawful rate of speed. This automobile overtook a "Model T Ford" driven by one Butts, traveling in the same direction as the Chevrolet, and, being unable to stop the Chevrolet, Byck suddenly turned the steering wheel and swerved his car to the left and directly in front of the automobile in which the plaintiff was riding and which was approaching from the opposite direction; the Plymouth being on the left side of the road so far as the Chevrolet was concerned. Thereupon the Chevrolet and Plymouth cars collided, and the plaintiff was injured. The highway at this point is straight and free from obstructions. Both automobiles were being driven at the time at about 70 miles an hour. In paragraph 10 of the original petition, plaintiff alleges that: "Bryan was driving his said automobile, as aforesaid, on the right hand side of the center of the highway and that at the point of meeting the T. Ford automobile, above referred to, the defendant, Sylvan M. Byck, drove the Chevrolet automobile, as aforesaid, in and on to his left hand side of the center of the said highway, directly in front of the automobile in which petitioner was riding, as aforesaid, thus causing the two automobiles to collide, almost head-on." The defendants are jointly and severally liable to plaintiff; the collision being the result of the joint and concurrent negligence of Byck, as agent of the Byck Electric Company, in the operation of the Chevrolet, while engaged in the business of said company, "and that while so engaged, he did drive the said Chevrolet automobile on to the left hand side of the center of said highway, and directly in front of the car driven by Cabaniss A. Bryan, as herein set forth; that the said Cabaniss A. Bryan, in whose car petitioner was riding, as a passenger, was driving the same at a terrific and dangerous rate of speed on said highway, and directly in and on to the automobile of the said Byck Electric Company, driven by the said Sylvan M. Byck, as above set forth; that the cause of said injuries, suffering and damages, was a joint and concurrent act caused by said collision, as above set forth, the negligent acts of each being set forth as follows:

"Defendants were negligent in that: "(a) Sylvan M. Byck, as agent of the Byck Electric Company, a corporation, * * * drove together the said automobiles, causing a head-on collision which injured and damaged petitioner in the manner above set forth; (b) That the collision and the driving together of said automobiles * * * was due to, caused by, and the sole result of, the negligence of the said Sylvan M. Byck, as agent of the Byck Electric Company, Byck Electric Company, and Cabaniss A. Bryan. (c) That the defendants, Sylvan M. Byck, as agent of the Byck Electric Company, and Sylvan M. Byck, were negligent in not driving the said automobile to the right hand side of the automobile of the said Cabaniss A. Bryan, thus preventing the collision and injury to petitioner; there being space sufficient to pass safely between the T. Model Ford Automobile, operated by Charlie Butts, and the automobile operated by the defendant, Cabaniss A. Bryan, without striking and colliding with same as herein alleged, thereby preventing the collision and injury to petitioner. * * * (d) That the said Cabaniss A. Bryan was negligent in not having his said automobile under control and driving same to his extreme right, thus avoiding colliding with the automobile of the Byck Electric Company, operated by Sylvan M. Byck. * * * (e) The Byck Electric Company, a corporation, through its agent, Sylvan M. Byck and Sylvan M. Byck, were negligent in driving said automobile on said highway at a rate of speed in excess of 40 miles per hour, and in violation of the statute of the State of Georgia, on account of said excessive speed, and in violation of the statute of the State of Georgia, the said automobile was beyond the control of the operator, the said Sylvan M. Byck, thus jointly, with the negligence of Cabaniss A. Bryan, caused the collision and injuries as above set forth, (f) The Byck Electric Company, a corporation, through its agent, Sylvan M. Byck, and Sylvan M. Byck, were negligent in not looking on the left hand side of said highway before driving said Chevrolet automobile thereon, and in attempting to pass the said Ford car on the left hand side of the highway withoutfirst looking to see whether or not there were cars approaching in the opposite direction; (g) The defendant, Cabaniss A. Bryan, was guilty of gross negligence in driving his said Plymouth automobile at an excessive and dangerous rate of speed, in violation of the statutes of the State of Georgia [Code 1933, § 68-301 et seq.]; (h) The said Cabaniss A. Bryan was negligent in not keeping his said automobile under control, so that said automobile could have been stopped, in order to have prevented the collision as above referred to; The defendant, Cabaniss A. Bryan, was guilty of gross negligence in driving his said Plymouth automobile at an excessive and dangerous rate of speed, in violation of the statutes of the State of Georgia, that the said Cabaniss A. Bryan was negligent in not keeping the said Plymouth automobile under control, so as to have enabled him to guide the same safely to the extreme right side of the highway, thereby avoiding the collision and negligent act of the defendant, Sylvan M. Byck, in trying to pass the T. Model Ford automobile of Charlie Butts. * * * (i) The said Cabaniss A. Bryan was guilty of gross negligence in failing to detect the presence of said automobile in time to prevent the collision, thus injuring and damaging petitioner as above set forth; (j) The negligent acts of all the defendants above enumerated was the approximate cause of the collision, which injured and damaged petitioner in the full sum sued for herein." There was ample room on said highway to pass to the left of the model T Ford automobile of Butts, and to the left of the center of the highway, and for the meeting and passing of both the Chevrolet and Plymouth automobiles, safely, and if the defendants had been in the exercise of ordinary care and diligence, and had not been driving said automobiles at a reckless and dangerous rate of speed, they could have passed on said highway.

The plaintiff offered an amendment to his petition in which he alleged that Bryan was negligent in driving his Plymouth automobile on a dark night at such dangerous and excessive rate of speed, about 70 miles an hour, in violation of the state law, and in not seeing the approaching automobile being driven by Byck, which was upon the wrong side of the highway, in time to have avoided the collision, which he could have seen by the exercise of ordinary care and diligence; the road being straight and without obstructions at this point. The plaintiff alleged that at the time he protested to Bryan about his speed "and remonstrated with him that it was dangerous to approach said automobile at said rate of speed; the defendant, Cabaniss A. Bryan, ignoring petitioner's protest, driving head-on into the automobile of the said Sylvan M. Byck, causing the collision as herein set forth. * * * (Italics ours.)...