Opinion
33531.
DECIDED JUNE 9, 1951.
Damages; from Bibb Superior Court — Judge Mallory C. Atkinson. February 27, 1951.
L. Eugene Jessup, for plaintiff in error.
Robert S. Horne, contra.
The original petition and the petition as amended allege a good cause of action and the court did not err in allowing the amendment and in overruling the demurrers.
DECIDED JUNE 9, 1951.
John B. Elliot sued Alfred W. Callaghan in Bibb Superior Court alleging substantially: (2) that on May 30, 1950, around 5 o'clock, p. m., plaintiff was driving his automobile on Pio Nona Avenue near Macon, Georgia, going west; that Pio Nona Avenue is also Georgia Highway No. 247; that plaintiff was travelling around 20 miles per hour; that when plaintiff came to that point on Pio Nona Avenue intersected by Hightower Road, he gave a signal that he was going to turn to the left into Hightower Road; that there is a dirt filling on the left side of Pio Nona which extends to Hightower Road; that plaintiff had cut across Pio Nona Avenue onto this graded lot and was proceeding across this dirt filling to Hightower Road; that all of plaintiff's car had cleared Pio Nona Avenue except his right rear wheel; that at this time defendant was driving east on Pio Nona Avenue and ran into plaintiff's car and gravely injured plaintiff; (3) that at the time plaintiff slowed down and signaled that he was going to turn into Hightower Road, defendant was at least 300 feet away and could easily have seen that plaintiff was turning to the left into Hightower Road, defendant was driving a Hudson automobile at the speed of around 70 miles per hour; that defendant did not slow down; that defendant could have easily passed around plaintiff as plaintiff's car was at least 90 percent off Pio Nona Avenue; that 90 percent of Pio Nona Avenue was completely cleared of plaintiff's car and that defendant had 90 percent of the roadway in which he could have passed to the left around plaintiff; (4) that defendant stated on the scene of the accident and immediately thereafter that it was his fault; that defendant stated that he did not see plaintiff and ran into him because he (defendant) was not noticing approaching traffic closely; that defendant further stated, away from the scene of the accident and several days later, that the accident was caused by his negligence; (7) that defendant was negligent in running into and injuring plaintiff as follows: (a) in operating a motor vehicle on a public highway in the State of Georgia at a rate of speed of 70 miles per hour which is in violation of the traffic laws of the State; (b) in failing to apply his brakes and stopping his car before running into and injuring plaintiff; (c) in so operating his car in a negligent and careless manner as to cause it to run into and injure plaintiff; (d) in failing to pass plaintiff on the left and thus pass around plaintiff without running into him; (e) in operating a motor vehicle on a public highway with faulty brakes; (f) in failing to observe the signal of petitioner that he was turning into Hightower Road; that at the time of his injury plaintiff was in the exercise of all ordinary care and diligence and through the exercise of which he could not avoid the consequences of defendant's negligence; that plaintiff was injured in certain particulars. Defendant demurred to the petition substantially as follows: 1. Generally because no cause of action is shown in that no duty was shown to be owed by defendant to plaintiff, or that the breach of any duty was the cause of plaintiff's injuries. 2. Generally and specially to the petition as a whole in that it is ambiguous, duplicitous, indistinct, uncertain of meaning and expression, of doubtful or uncertain nature, and actually contradictory in one part with another; that the petition is duplicitous in that it is allegedly based on simple negligence, whereas the allegations of paragraph three of the petition attempt to set up allegations of wanton and wilful misconduct or of reckless disregard of others; that certain other allegations pointed out were inconsistent with one another. 3. Generally in that the allegations of negligence are conclusions of the pleader and in that it is not alleged that such negligence was the proximate cause or a contributing cause of the collision. 4 and 5. Generally because the petition shows on its face that plaintiff's own negligence was the proximate cause of the collision. Plaintiff amended his petition as follows: paragraph 2 by adding: "The dirt filling herein mentioned is in reality a part of the Hightower Road and is an abutment to Hightower Road"; paragraph 2 by striking the word "east" in the last line thereof and substituting in lieu thereof the word "north"; paragraph 7 by adding the following: "(g) In operating a motor vehicle on Pio Nona Avenue at a rate of speed in excess of 35 miles per hour. Petitioner shows that Pio Nona Avenue is a zoned area having been zoned by the State Highway Department." "Petitioner shows that all the grounds of negligence set out in paragraph 7 of his original petition and in paragraph 7 as amended was the proximate cause of the collision and was the proximate cause of the injuries suffered by your petitioner"; by adding: "Petitioner shows that he reached the intersection of Pio Nona Avenue and Hightower Road at least 30 seconds before defendant did. Petitioner shows that defendant was at least 300 feet away when he started to make his turn into Hightower Road. Petitioner had the right of way because he reached the intersection far ahead of defendant. Defendant was further negligent in crossing the intersection and running into the car of your petitioner. Defendant was duty bound not to negligently run into and injure your petitioner." Defendant filed the following renewed demurrer which was actually treated as an objection to the allowance of the amendment: 1. That the original petition did not set out a cause of action, and, consequently, there was nothing by which to amend. 2. That plaintiff attempts by amendment to set up allegations of facts which do not amplify the allegations of the original petition but which are inconsistent with and contradictory to the original allegations. 3. That plaintiff attempts by amendment to set out a new cause of action. 4. That the amendment in no manner negatives the inescapable inference that the collision was caused directly and proximately by the negligence of the plaintiff; that the amendment is inconsistent and full of conclusions and, instead of clarifying the inconsistencies of the petition, contributes to the irreconcilable conflict of allegations within the petition and between the petition and amendment; that since the amendment, like the petition, is fatally defective in parts, it must fall in its entirety upon objection made in the renewed demurrer. The court allowed the amendment and overruled the original demurrers and renewed demurrers, and defendant excepted.
1. Plaintiff in error contends that the original petition does not allege a cause of action because it does not allege that defendant owed plaintiff any duty the violation of which injured plaintiff. The plaintiff clearly alleges such a duty and its violation to his injury. The duty of a driver of an automobile, relative to persons and property on the highway, is to exercise ordinary care to avoid injuring them. Giles v. Voiles, 144 Ga. 853 (1) ( 88 S.E. 207); Davies v. West Lumber Co., 32 Ga. App. 460 (1) ( 123 S.E. 757). He further contends that the original petition is duplicitous in that the petition is allegedly based upon simple negligence whereas the allegations in paragraph three of the petition attempt to set up wanton and wilful misconduct or reckless disregard of others. Such contention is without merit. Paragraph three only recites the facts which plaintiff set up in paragraph seven of his petition as constituting the specific acts of negligence. While driving an automobile 70 miles per hour on the highways of Georgia may in some cases constitute wanton and wilful misconduct or reckless disregard of others, such does not preclude one from alleging the fact of driving at such speed to show ordinary negligence.
2. Plaintiff in error contends that the original petition does not contain enough to amend by. Plaintiff clearly had enough to amend by in his original petition under the standards set up in Code § 81-1302, which provides: "A petition showing a plaintiff and a defendant, and setting out sufficient to indicate and specify some particular fact or transaction as a cause of action, shall be enough to amend by. The jurisdiction of the court may be shown and the details and circumstances of the particular transaction may be amplified and varied by amendment. If the declaration shall omit to allege facts essential to raise the duty or obligation involved in the cause of action which was evidently originally intended to be declared upon, the omitted fact may be supplied by amendment." See also, in this connection, the celebrated cases of Ellison v. Georgia Railroad Co., 87 Ga. 691 ( 13 S.E. 809) (which gave birth to the above Code section), and City of Columbus v. Anglin, 120 Ga. 785 ( 48 S.E. 318). Neither does the amendment allege a new cause of action. The allegation in the amendment, that "The dirt filling herein mentioned is in reality a part of Hightower Road and is an abutment to Hightower Road." is merely an amplification of the allegation in the original petition, that "There is a dirt filling on the left side of Pio Nona Avenue which extends to Hightower Road. Your petitioner had cut across Pio Nona Avenue onto this graded lot, and was proceeding across this dirt filling to Hightower Road," and is explanatory of and not contradictory to the original allegation. While it is true that the plaintiff does not allege the acts of negligence set out in the original petition to be the proximate cause of his injuries, he does allege a causal relation between the alleged acts of negligence and his injuries, and he may set up such acts as being the proximate cause of his injuries in his amendment. The contradictions which did exist in the original petition, which constituted amendable defects, were rectified by the amendment.
Suffice it to say, without elaboration on the question, that the allegations of plaintiff's amended petition do not show that plaintiff's own negligence was the proximate cause of his injuries.
The court did not err in allowing the amendment and in overruling the demurrers.
Judgment affirmed. Sutton, C.J., and Worrill, J., concur.