Parsons v. Foshee
| Decision Date | 23 September 1949 |
| Docket Number | No. 32477.,32477. |
| Citation | 80 Ga.App. 127,55 S.E.2d 386 |
| Parties | PARSONS. v. FOSHEE. |
| Court | Georgia Court of Appeals |
Rehearing Denied Oct. 14, 1949.
Edwin D. Foshee sued G. R. Parsons for damages resulting from an automobile collision and defendant filed a cross-action for injuries.
The Superior Court, Sumter County, W. M. Harper, J., overruled defendant's motion for a new trial after verdict for plaintiff and defendant brought error to review that order and order on demurrers to petition.
The Court of Appeals, Worrill, J., affirmed the judgment, holding, inter alia, that petition stated cause of action good as against general demurrers and that the evidence sustained verdict.
Syllabus by the Court.
1. The amended petition stated a cause of action as against the general demurrer.
2. An amendment made in response to a ruling sustaining a special demurrer opens up the whole case for consideration on its merits, and if the petition states a cause of action, it is not error to overrule the renewed special demurrers notwithstanding the amendment adds nothing to the original petition. (a) The court had the authority to allow the amendment and order it filed of record although it may not have been presented within the time set in the original order sustaining the special demurrer.
3. The court did not err in admitting in evidence the testimony of the plaintiff as to what it appeared to him "the defend ant was going to do", in view of the other testimony as to the facts of the occurrence which immediately preceded that objected to.
4. The refusal of the court to admit certain testimony as to defendant's injuries and the charge on defendant's damages, as complained of in special grounds two and four of the motion for new trial, do not show harmful error inasmuch as the jury found for the plaintiff on the primary issue of liability.
5. It was not error for the court to refuse to permit the witness to make a drawing while on the stand and while testifying before the jury.
6 & 8. Special grounds five, seven and eight of the motion for new trial are without merit.
7. The charge as complained of in special ground 6 of the motion for new trial was not harmful to the defendant's case and this ground of the motion shows no cause for reversal.
9. The evidence authorized the verdict.
Edwin D. Foshee sued Mrs. G. R. Parsons for damages alleged to have resulted from an automobile collision between an automobile owned and driven by the plaintiff and one owned and driven by the defendant. The material allegations of the petition as finally amended were that the plaintiff was driving his automobile toward Americus from the direction of Cordele, on U. S. Highway 280 at the rate of 50 miles per hour; that at a point about three miles from Americus he came over a slight rise and saw two other automobiles approaching from the opposite direction; that the defendant's automobile was parked on the [plaintiff's] left side of the road, off the pavement facing in the same direction as the on-coming cars, by which it was screened from plaintiff's view; that after the second of the two cars had passed defendant's car, and while plaintff's view was still screend by said second car defendant drove across the highway in front of plaintiff's car without any warning and when plaintiff was with-in about 100 feet of defendant's car; that plaintiff was unable to stop his car, having had no cause to anticipate defendant's action, and in attempting to avoid a collision turned his car to the right and ran off the paved portion of the highway onto the shoulder; that defendant continued across the highway and struck the plaintiff's car on the left side thereof and caused plaintiff's car to overturn in a ditch on the right side of the highway about 25 feet from the point of collision. Plaintiff then set forth his damages, including $5.00 for ambulance service, $6.00 for medicine and he alleged that the value of his automobile immediately before the collision was $1511.80 and immediately after the collision was only $700.00, making the amount claimed for damages to his automobile $811.80.
The defendant demurred to the petition generally and specially and filed an answer and cross-petition. The court entered an order sustaining certain special demurrers and overruling the general grounds of the demurrer, and gave the plaintiff 15 days in which to amend. The plaintiff amended the petition, the defendant filed renewed demurrers, and the court sustained certain special grounds thereof leaving the petition substantially as set out above, and overruled other grounds thereof. To this order the defendant filed exceptions pendente lite.
The case proceeded to trial. Verdict was returned for the plaintiff and judgment was entered thereon. The defendant filed a motion for a new trial on the general grounds which was amended by the addition of eight special grounds. The court overruled the motion for new trial and the exception here is to that order and to the final order on the demurrers as complained of in the exceptions pendente lite.
R. L. LeSueur, Americus, for plaintiff in error.
Claude Morris, Americus, R. L. Maynard, Americus, for defendant in error.
1. The first exception pendente lite is to the order of the trial judge in overruling the general grounds of the defendant's renewed demurrer. A tort is the unlawful violation of a private legal right by reason of which some special damage accrues to the individual. Code, § 105-101. A plaintiff need allege only the factum of the duty, a violation of that duty and damages proximately resulting therefrom in order to withstand a general demurrer. Vickers v. Georgia Power Co., 79 Ga.App. 456, 54 S.E.2d 152; 41 Am.Jur., Pleading, § 78. Tested by these simple rules the petition as amended stated a cause of action founded on the negligence of the defendant and the court did not err in overruling the general demurrers.
2. The exceptions pendente lite complain that the court erred in refusing to strike paragraph 14 of the petition in response to the original and renewed demurrers thereto. Paragraph 14 alleged that, "the aforesaid 1948 Chevrolet Fleet-master Tudor automobile was purchased brand-new only nine (9) days preceding the date of this collision for the sum of $1511.80, that the said automobile was in good mechanical condition and immediately prior to said collision had a reasonable market value of $1511.80, and after said collision had a reasonable market value of only $700.00, resulting in a loss to this plaintiff of $811.80." The defendant demurred specially to that paragraph on the ground that the paragraph failed to set forth in detail what parts of the automobile were damaged, what repairs were necessary, whether the plaintiff still owned the car, and that the allegations as to the market value before and after the trial were mere conclusions. The court sustained that ground of the demurrer in an order dated October 27, 1948, and allowed the plaintiff 15 days in which to amend. The plaintiff amended by the addition of sub-paragraph 14a, as follows: "Petitioner's 1948 Chevrolet Fleetmaster Tudor automobile was damaged all over in said collision, it overturned and the top was smashed and bent, the hood was bent, the headlights were damaged, the fenders were smashed and bent, the doors were bent and twisted, the running boards weresmashed and bent, radiator was damaged, the wheels were bent, fender braces were knocked loose, and the head lining was torn loose." The defendant renewed her special demurrers, the court overruled them and the defendant excepted pendente lite.
This exception raises two questions for our consideration, the first being whether the amendment filed and allowed by the trial judge sufficiently met the terms of the original demurrer and the second being whether the amendment which apparently was filed two days after the time allowed in the original order had expired, was properly allowed filed, or whether the trial judge had authority to allow and order the amendment filed notwithstanding the fact that it was filed after the time set. Where the trial judge sustains a special demurrer and in his order allows the plaintiff a given time in which to amend, the order not providing for automatic dismissal on plaintiff's failure to amend within the time allowed, an amendment by the plaintiff, purporting to be filed in response to the original order, opens up the whole case for consideration upon its merits and the conditional order upon the original demurrer concludes nothing. Folsom v. Howell, 94 Ga. 112(1), 21 S.E. 136; Jones v. Butler, 191 Ga. 126, 128, 12 S.E.2d 326; Smith v. Bugg, 35 Ga.App. 317, 320, 133 S.E. 49; Woodland Hills Co. v. Lawton, 37 Ga.App. 742(3), 142 S.E. 408. While the original order on the special demurrers did not provide for automatic dismissal conditioned on plaintiff's failure to amend, the order was...
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