Reeves v. Mchan

• Citation: 50 S.E.2d 787
• Decision Date: 13 November 1948
• Docket Number: Nos. 32172, 32173.,s. 32172, 32173.
• Parties: REEVES . v. McHAN et al. McHAN. v. REEVES et al.
• Court: United States Court of Appeals (Georgia)

50 S.E.2d 787

REEVES .

v.McHAN et al.

McHAN.

v.REEVES et al.

Nos. 32172, 32173.

Court of Appeals of Georgia,

Division No. 1.

Nov. 13, 1948.

Rehearing Denied Dec. 15, 1948.

Syllabus by the Court.

1. The petition of the plaintiff stated a cause of action against the defendant who demurred, and the court erred in sustaining a general demurrer and in dismissing the petition as to him.

2. The special demurrer to the petition on the grounds that it was multifarious and that there was a misjoinder of parties and causes of action should have been sustained.

Error from Civil Court of Fulton County; Quincy O. Arnold, Judge.

Action for damages to automobile by Floyd L. Reeves against R. C. McHan and others. To review the judgment, the plaintiff brings error, and the named defendant files a cross-bill of error.

Reversed on main bill and on cross-bill.

Floyd L. Reeves sued Petroleum Carrier Corporation, a non-resident carrier for hire, Emmett C. Stanton, its agent and driver of its tractor-trailer truck, American Fidelity and Casualty Company, its insurer, and R. C. McHan, for damages to the plaintiff's automobile. It was alleged that the plaintiff's car was in the possession of his son, who was driving northwesterly along the Stone Mountain-Redan road, about three miles southeasterly from Stone Mountain, about 8:00 P. M., December 21, 1945; that on the northwesterly side of said highway there was a petroleum bulk plant owned and operated by R. C. McHan; that as plaintiff's son was driving along said highway approaching the bulk plant of the defendant McHan he was confronted with the bright, glaring headlights of an automobile apparently approaching from the opposite direction, but which was parked just off the paved highway on the shoulder on the northwesterly side thereof between the paved portion of the highway and the bulk plant; that said parked automobile was the property of the defendant McHan, and had been left parked as aforesaid with the glaring headlights burning thereon; that Petroleum Carrier Corporation, through its agent and servant Stanton, was at said time and place operating a large petroleum carrier tractor-trailer without any lights thereon, and had pulled the same out of the bulk station of McHan into the highway completely blocking the right side thereof, in the direction plaintiff's son was driving, at a point opposite the bulk plant on the northeasterly side thereof; that the trailer-tractor was a dirty aluminum color and could not be seen behind the glare of the headlights on the McHan automobile; that the tractor-trailer was sitting on said highway without any lights thereon, and the driver thereof put out no flares to warn the traveling public on said highway as required by law; that just as the plaintiff's automobile, driven by his son, passed through the glare of the lights on the McHan car, the tractor-trailer, which was blocking said highway as aforesaid, loomed up in front of the plaintiff's son and he was unable to avoid running into same causing the damages to plaintiff's automobile for which he sued.

The negligence charged in the petition as amended to McHan, the only defendant with whom we are now concerned, was substantially as follows: (a) In failing to have his said automobile provided with front lamps so as to prevent dangerously glaring or dazzling rays from the lamps in the eyes of approaching drivers as required by the Code, § 68-302. (b) In leaving his automobile parked at night along the side of the highway with bright lights thereon dangerously glaring up the highway in the direction from which plaintiff's son was approaching and directly in his eyes. (c) In failing to dim the lights on his automo-bile as plaintiff's son approached the point where said car was parked at the edge of the paved highway. (d) In leaving his said automobile parked along said highway as aforesaid with the beams from the headlights thereon creating a blinding glare which interfered with the vision of the driver of the plaintiffs automobile, while approaching within 500 feet of said parked automobile, in violation of law. The negligence charged in paragraphs (a) and (d) was described as negligence per se.

McHan demurred to the petition generally and specially. The pertinent grounds of special demurrer were that the petition was multifarious as to parties and causes of action, and that there was a misjoinder of parties because the action in one count sought to recover damages against McHan on an alleged tort liability and also to recover damages against American Fidelity

and Casualty Company on a contract liability, and that the plaintiff could not join a tort and contract liability against separate and distinct defendants in the same suit. The court sustained the general demurrer and dismissed the case as to McHan, but overruled the special demurrers. The plaintiff excepted in a direct bill of exceptions to the sustaining of the general demurrer, and the defendant McHan excepted pendente lite and in a cross bill of exceptions to the overruling of his special demurrers on the grounds of multifariousness and misjoinder as to parties and causes of action.

In No. 32172:Dunaway, Riley & Howard and James M. Embry, all of Atlanta, for plaintiff in error.

Noah J. Stone, and Andrews & Nall, all of Atlanta, for defendants in error.

In No. 32173:Noah J. Stone, of Atlanta, for plaintiff in error.Dunaway, Riley & Howard, James M. Embry, and Andrews & Nall, all of Atlanta, for defendants in error.

PARKER, Judge.

1. Under the rulings in Fender v. Drost, 62 Ga.App. 345, 7 S.E.2d 800, Harwell v. Blue's Truck Line, Inc., 187 Ga. 78, 199 S.E. 739, and ...