Veal v. Paulk
| Decision Date | 09 February 1970 |
| Docket Number | Nos. 44881,No. 2,44917,s. 44881,2 |
| Citation | 121 Ga.App. 575,174 S.E.2d 465 |
| Parties | Lucy VEAL v. D. L. PAULK, Jr. D. L. PAULK, Jr. v. Lucy VEAL |
| Court | Georgia Court of Appeals |
Benjamin Zeesman, Cordele, for appellant.
Jay, Garden & Sherrell, Clayton Jay, Jr., Fitzgerald, for appellee.
Syllabus Opinion by the Court
This appeal and cross appeal involve a suit for personal injury and property damages arising out of an alleged collision of two automobiles on Sunday, July 5, 1964. The suit was filed in three counts on July 5, 1966, alleging in Count 1 certain personal injuries and property damage arising out of the collision; in Count 2 certain punitive damages by reason of the fact the driver, servant and agent of the defendant was under the influence of intoxicating liquors while injuring and damaging the plaintiff; and in Count 3 the plaintiff sought additional punitive damages resulting from the negligent entrustment of the vehicle to a person known to drink intoxicants on weekends. General and special demurrers were filed to the petition, claiming in the main, that it sought to recover for personal injuries and punitive damages barred by the two-year statute of limitation. The petition was later amended seeking to show that the statute was tolled for reasons set out. Thereafter, in a hearing on the demurrers, the defendant's general demurrers were overruled but certain of the special demurrers were sustained, and a number of the paragraphs of the petition were ordered stricken. After the amendment on the 28th day of August, 1967, the case was set down for a hearing on the demurrers three days later, on the 31st day of August, 1967, and the plaintiff made a special appearance to object to and move to strike and dismiss and revoke the order because it was unreasonable in that it did not allow sufficient time or notice before the hearing, and for other grounds showing it to be unreasonable and unjust. The court overruled the motion and proceeded to a hearing on the demurrers. The case was heard before a jury on the property damages alone and resulted in a mistrial. Thereafter the petitioner sought to amend her pleadings to set out additional grounds of personal injury and punitive damage, and the court sustained defendant's motion to strike and dismiss. this amendment. In addition, the plaintiff filed a motion for charge of venue after the mistrial by the jury, which was overruled. The trial court certified that the rulings were of such importance that they should be determined immediately by appeal, and the appeal is from the overruling of plaintiff's motion for change of venue, the sustaining of defendant's motion to strike and dismiss the plaintiff's amendment. The appellant also seeks to obtain a review of the antecedent rulings involving the sustaining of defendant's demurrers, and other special pleadings. The enumerations of error state that the court erred in (1) sustaining defendant's motion to strike and dismiss the plaintiff's amendment; (2) overruling the plaintiff's motion for change of venue; (3) sustaining defendant's special demurrers to each of the three counts, thus, in effect, leaving for trial the plaintiff's allegations as to damages to the automobile alone and eliminating her personal injuries and the punitive damages sought by her; (4) overruling plaintiff's motion for continuance of a demurrer hearing set two days after the filing of an amendment to the petition; (5) overruling plaintiff's motion to dismiss and revoke the above order; and (6) giving certain instructions in charging the jury and also in refusing to charge certain written requests by the appellant. The cross appellant enumerates error on the denial of his motion for directed verdict and motion for judgment in accordance with the same. Held.
1. A number of the enumerations of error complained of the orders and rulings on the demurrers, having the effect of striking the pleadings seeking relief for personal injuries and for punitive damages since the suit was filed two years after the alleged injury occurred. By amendment the appellant sought to show that the statute of limitation was tolled due to certain facts, including the effect of the provisions of Code Ann. § 102-102(8) (Ga.L.1958, pp. 388, 389; 1967, pp. 579, 580) that when a number of days is prescribed for the exercise of any privilege and the last day shall fall on a Saturday or Sunday, the party having such privilege shall have through the following Monday to exercise it, since in this instance July 4 was a legal holiday. It has been held by this court that the provisions of this law do no apply to limitations expressed in months or years. Code Ann. § 3-1004 (Ga.L.1964, p. 763); Peterson v. Ga. Railroad & Banking Co., 97 Ga. 798, 25 S.E. 370; Hammond v. Clark, 136 Ga. 313, 322, 71 S.E. 479; McLendon v. State, 14 Ga.App. 274, 80 S.E. 692; Brown v. Emerson Brick Co., 15 Ga.App. 332, 333, 83 S.E. 160; Chevrolet Parts Div., General Motors Co., v. Harrell, 100 Ga.App. 280(2), 111 S.E.2d 104; Davis v. Hill, 113 Ga.App. 280(1, 2), 147 S.E.2d 868. Further, in adopting the new Civil Procedure Act, the General Assembly left intact the statutes of limitation. Davis v. U.S.F.& G. Co., 119 Ga.App. 374, 376, 167 S.E.2d 214. Accordingly, the court did not err in sustaining the demurrers and in striking the portions of the petition seeking damages for personal injuries and punitive damages based on the personal injuries since the statute of limitation had run thereon. All the enumerations of error complaining of the sustaining of these demurrers to the original petition and to the amendments seeking special damages arising out of the personal injury are without merit.
2. However, the petition also seeks punitive damages by reason of the negligent entrustment of the motor vehicle to the servant, and the court erred in striking all the...
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