Opinion
33640.
DECIDED JULY 16, 1951.
Action for damages; from Fulton Superior Court — Judge Andrews. April 12, 1951.
Fraser Shelfer, for plaintiff.
W. Neal Baird, Neely, Marshall Greene, for defendants.
1. Where a demurrer to a petition is sustained and the judgment thus entered is unexcepted to, such judgment becomes the law of the case that the petition in its original form was subject to the defects pointed out by such demurrer.
2. Where, without excepting to such judgment, the plaintiff elects to amend his petition, and the amendment allowed and filed does not cure the defects adjudged to exist by the order sustaining the general demurrer, and no additional amendment curing such defects is thereafter offered, a motion to dismiss the petition is properly sustained.
DECIDED JULY 16, 1951.
Leslie McGarity filed a damage suit in the Superior Court of Fulton County against F. D. Brewer and Guy J. McGarity for injuries received by him while riding as a passenger in an automobile owned by Guy McGarity and driven by Brewer at the request and upon the direction of the owner. The allegations of the petition pertaining to negligence are as follows: "6. Your petitioner shows that the said Brewer was driving the automobile in which your petitioner was riding as a passenger at said time and place at the rapid, dangerous and illegal rate of speed of 65 miles per hour. 7. That upon going around a curve the said Brewer, who was driving said automobile as aforesaid, saw an automobile operated by one Cris Smith, colored, back out of a side road onto the highway upon which the automobile in which your petitioner was riding as a passenger was traveling and had ample time to stop before striking said automobile but negligently and wantonly drove into said automobile without stopping, causing your petitioner to sustain the injuries hereinafter set out. 10. Your petitioner shows that the defendants were grossly negligent as follows: (a) In operating an automobile along a public highway at a rate of speed in excess of 65 miles per hour; (b) In failing to stop said automobile after another automobile had driven out into the highway; and (c) In running into an automobile already in the highway when the driver of the automobile in which your petitioner was riding as a passenger had ample time in which to bring said automobile to a stop without striking the automobile already in the highway."
The trial court upon hearing sustained all the grounds of demurrer but allowed the defendants 15 days to amend. The grounds of demurrer were as follows: "1. No cause of action is set out in said petition. 2. The facts alleged in said petition are insufficient to constitute gross negligence. 3. Defendants demur specially to paragraph 7 and the petition as a whole, upon the ground that it is duplicitous, there being alleged in said paragraph and said petition acts of negligence and acts of wantonness in the same count."
During the time allowed, an amendment was filed in an apparent effort to meet the third ground of demurrer which attacked paragraph 7 for duplicity. The defendants then moved for a dismissal of the case and, upon hearing, the trial court sustained this motion and dismissed the petition. The exception is to this ruling.
"Where a demurrer to a petition is sustained and the judgment thus entered is unexcepted to, the same becomes the law of the case." Hayes v. Simpson, 83 Ga. App. 22 (1-a) ( 62 S.E.2d 441); Truitt v. Southern Ry. Co., 80 Ga. App. 790 ( 57 S.E.2d, 496); Elijah A. Brown Co. v. Wilson, 191 Ga. 750, 751 ( 13 S.E.2d 779); Miles v. Sears, Roebuck Co., 65 Ga. App. 43 ( 14 S.E.2d 613); Irby v. Gulf Life Ins. Co., 78 Ga. App. 783 ( 52 S.E.2d 491); Darling Stores Corp. v. Beatus, 197 Ga. 125 ( 28 S.E.2d 124); Speer v. Alexander, 149 Ga. 765 ( 102 S.E. 150); Lavenden v. Haseman, 157 Ga. 275 ( 121 S.E. 646); Gamble v. Gamble, 193 Ga. 591 ( 19 S.E.2d 276); Atlantic Rfg. Co. v. Peerson, 31 Ga. App. 281 ( 120 S.E. 652). The plaintiff here did not except to the rulings of the court sustaining the general demurrer to the petition, and it is therefore the law of the case, right or wrong, that the petition prior to amendment did not set out a cause of action because it failed to allege facts sufficient in law to show gross negligence on the part of the plaintiffs. The only effect of the amendment was to strike the word "wanton" from the petition in characterizing the conduct of the plaintiffs. In consequence, the amendment in no way aided as against general demurrer. It is significant that no new demurrer was interposed to this petition after amendment. On the hearing of the motion to dismiss, no amendment curing the defect pointed out by the demurrer was offered. The exception is to the judgment of the trial court sustaining the demurrer in the first instance and sustaining the motion to dismiss the case after amendment. This exception is too late as to the judgment of the trial court sustaining the demurrer, it having been taken more than twenty days after the rendition of the judgment of which complaint is made. The motion to dismiss is based on the ground that the amendment striking the word "wantonly" failed to cure the defect in the original petition, which was the alleged insufficiency of the facts stated to constitute gross negligence, since no additional facts relating to gross negligence were added by amendment. As hereinbefore pointed out, whether the judgment of the trial court sustaining the demurrer on this ground was right or wrong, it was not excepted to within the time required by law and became the law of the case. Since the amendment which was filed pursuant to the judgment of the trial court sustaining the demurrer failed to aid the petition in this respect, the motion to dismiss was good, and the trial court did not err in sustaining it and dismissing the petition.
This case does not present the situation found in Folsom v. Howell, 94 Ga. 112 ( 21 S.E. 136) where the judgment sustained the general demurrer with leave to amend "to make the petition good in law," and where thereafter the defendants filed new demurrers to the petition as amended. It was there held that the demurrer to the petition as amended opened the merits of the whole pleading to a fresh adjudication, and that, if the petition as a whole set forth a cause of action such demurrer should be overruled, whether the matter contained in the amendment aided the petition or not. The situation here appears rather to fall under the rule set out in Gamble v. Gamble, supra, and "the extent of the present inquiry therefore is only to determine if the offered amendment meets the grounds of demurrer as provided by the judgment." Since it did not do so, and, indeed, made no attempt to do so as far as the ruling on the general demurrer is concerned, the judgment dismissing the petition is without error.
Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur.