Nathan v. Duncan

• Decision Date: 05 April 1966
• Docket Number: No. 3,No. 41848,41848,3
• Citation: 149 S.E.2d 383,113 Ga.App. 630
• Parties: H. G. NATHAN v. Clara J. DUNCAN
• Court: Georgia Court of Appeals

Page 383

149 S.E.2d 383

113 Ga.App. 630

H. G. NATHAN v. Clara J. DUNCAN.

No. 41848.

Court of Appeals of Georgia, Division No. 3.

April 5, 1966.

Rehearing Denied May 11, 1966.

Syllabus by the Court

1. Overruling of the general demurrer was not error.

2. Overruling of special demurrers calling on plaintiff to allege where in the road behind her the defendant's car was being driven, at what distance she was following the car of plaintiff and at what speed, if error, was harmless.

3. There was no error in the denial of a motion for nonsuit, denial of a judgment notwithstanding the verdict, and denial of a new trial on the general grounds.

4. There was no error in the charge relative to admissions contained in the answer, later stricken by amendment.

5. The contention that the court failed to charge sufficiently on the contentions of the defendant is without merit.

6. Errors alleged to have been in the charge, but to which there was no exception as provided in Code Ann. § 70-207(a, b), will not generally be held harmful as a matter of law, and will not be considered unless it appears that a gross injustice is about to result or has resulted, directly attributable to the alleged errors.

7. Where defendant serves the plaintiff with interrogatories under Code Ann § 38-2108 seeking information as to the names of people who may have seen the collision, or have information concerning it, or whom plaintiff expects to use as witnesses upon the trial, and in making answer plaintiff fails to give the names of some whom he later calls as witnesses at the trial, the proper procedure is for the defendant to move for a postponement of the trial for the purpose of affording him a reasonable opportunity to interview the witnesses, investigate the information which they may give in the interview and, if deemed advisable, investigate the character and veracity of the witnesses looking to the matter of impeachment. A denial of that motion would be an abuse of discretion calling for a new trial. But allowance of the witnesses to testify over objection that the names were not supplied is a matter in the sound discretion of the trial judge and is not ground for new trial.

8. We cannot say, as a matter of law, that the verdict was excessive.

Mrs. Clara J. Duncan brought suit against H. G. Nathan to recover damages for injuries which she alleged were sustained when the automobile of Nathan, driven by his wife, struck the rear of the Duncan car. She alleges that the incident occurred about the middle of a clear day on February 26, 1964 in a line of traffic along Cherry Street in Jesup, and while crossing some eight sets of parallel tracks of the Atlantic Coast Line Railroad. The flow of traffic was heavy due to the closing of the stores for the remainder of the day and the further fact that it was an election day in Jesup. Plaintiff alleges that the sole and proximate cause of her injuries was (a) the violation of Code Ann. § 68-1626(a), which provides that one shall not drive his motor vehicle along the public street or highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing, and that in every event the speed shall be so controlled as to avoid colliding with another, (b) failure to keep the vehicle under proper control and (c) following more closely than was reasonable and prudent, having due regard for traffic conditions.

A verdict was returned for the plaintiff, and the defendant now appeals, enumerating as errors the overruling of a general and certain special demurrers to the petition, overruling of an amended motion for new trial, in which there were several exceptions to portions of the charge. This case was tried after the effective date of the Appellate Practice Act of 1965.

Zorn & Royal, William A. Zorn, Jesup, for appellant.

Adams & Henry, Ronald F. Adams, Q. Robert Henry, Brunswick, for appellee.

EBERHARDT, Judge.

1. It is urged that since there were no allegations as to the distance defendant's automobile was behind the plaintiff, and the petition does not allege at what speed it was being operated, her allegations of negligence are no more than conclusions unsupported by any properly alleged facts. It is a close question as to whether the allegations can withstand a general demurrer, but since, as against a general demurrer a mere general allegation of negligence will suffice (Hudgins v. Coca Cola Bottling Co., 122 Ga. 695, 698, 50 S.E. 974), and since she does allege that the incident occurred in the middle of the day at a time when there was extremely heavy traffic along the streets of Jesup due to the closing of the stores just a short time prior thereto and due to the fact that an election was being held, that it happened as plaintiff and defendant were crossing a series of railroad tracks traversing the street, and that the rear of her car was struck with great force and violence causing described injuries which were serious in nature, we are of the opinion that the overruling of the general demurrer was not error. Cf. Raines v. Jones, 96 Ga.App. 412, 100 S.E.2d 157.

2. Paragraph 8 of the petition alleged that at about midway the series of railroad tracks, which were approximately 100 feet in width, the right front of defendant's car struck the left rear of plaintiff's vehicle suddenly, violently and without great force, and in paragraph 16(a) alleged, as an act of negligence, that defendant had driven at a speed that was greater than was reasonable and prudent under the existing circumstances, in violation of Code Ann. § 68-1626(a). By amendment it was alleged that defendant had followed more closely than was reasonable and prudent, in violation of Code Ann. § 68-1641(a). Defendant demurred specially, seeking to strike these allegations of negligence because they were mere conclusions only, unsupported by allegations of fact, and now points out that plaintiff failed to allege where defendant's automobile was being driven, and the distance between the two vehicles. The demurrers were overruled.

It must be conceded that the plaintiff should allege enough to show the existence of negligence on the part of a defendant, and that the defendant is entitled to have included in the petition all information needed to enable him to make preparation of a defense. To that end the special demurrer serves a useful purpose.

In the posture here the plaintiff was under a legal duty to keep a vigilant lookout ahead. Claxton v. Hooks, 68 Ga.App. 383, 385, 23 S.E.2d 101. If she were changing lanes of traffic, or making a turn to the right or left, or if she were coming to a stop, she would be under a duty to take the precaution of ascertaining whether another vehicle was following or passing, or about to pass her and give an appropriate signal. But as we see it, it is placing too great a burden on the plaintiff to require that she know and allege just where in the road the car behind may have been, at what distance it followed and at what speed it traveled. 'There is nothing more unreliable than mere opinions and estimates of time and distance.' Augusta Southern R. Co. v. Carroll, 7 Ga.App. 138, 66 S.E. 403. How greater the unreliability when the opinion or estimate must be based upon what is seen in a rear view mirror! If the plaintiff were in the performance of her legal duty she could not, in the ordinary course of things, unless wearing the two faces of Janus, allege these items. But the defendant's wife (his agent) driving behind, if keeping a lookout ahead, must have known where she was in the street, how fact she was operating the car and how closely she followed. A plaintiff should not be required to allege facts which are not calculated to be in his or her knowledge, but which obviously are within the knowledge of the defendant. Enough circumstances were alleged as to the occurrence to afford much of the information sought. There was no error in overruling these demurrers. Hein v. Morgan, 112 Ga.App. 535, 145 S.E.2d 780; Purcell v. Hill, 107 Ga.App. 85, 89, 129 S.E.2d 341.

'Good pleading requires only that the plaintiff plainly and concisely state the material ultimate facts upon which she depends for recovery.' Lefkoff v. Sicro, 189 Ga. 554(10), 6 S.E.2d 687, 113 A.L.R. 738; Baker v. Goddard, 205 Ga. 477, 479, 53 S.E.2d 754; Wood v. Hub Motor Co., 110 Ga.App. 101, 107, 137 S.E.2d 674.

There is similarity between this case and Daughterty v. Pruitt, 113 Ga.App. 88, 147 S.E.2d 347, as there is between it and any rear end collision case, but the records reveal there are many differences. Three were involved in Daugherty and it was impossible to deduce from the allegations which of the two cars to the rear plaintiff contended was responsible for the damage. The allegations were in the most general terms, wholly without facts that might have illustrated the negligence claimed. If there were error in overruling the special demurrers here, it was harmless, for it clearly appears that plaintiff was already in possession of the information called for. Clifton v. State, 35 Ga.App. 399(2), 133 S.E. 287. And see Georgia, Florida & A.R. Co. v. Parsons, 12 Ga.App. 180(4), 76 S.E. 1063.

3. Under the facts and circumstances proven concerning the manner in which the incident occurred a verdict was authorized, but not demanded, for the plaintiff or the defendant. There was no error in the denial of the motion for a nonsuit, or the motion for a judgment n.o.v. or in overruling the general grounds of the motion for new trial.

We do not overlook the cases of Hay v. Carter, 94 Ga.App. 382, 94 S.E.2d 755; Cartey v. Smith, 105 Ga.App. 809, 125 S.E.2d 723; Flanigan v. Reville, 107 Ga.App. 382(2), 130 S.E.2d 258; Simpson v. Brand, 108 Ga.App. 393, 400, 133 S.E.2d 393 and Malcom v. Malcolm, 112 Ga.App. 151, 144 S.E.2d 188. In Hay v. Carter it was held that the driver of the lead car must exercise ordinary care not to stop, slow...