Opinion
44253, 44255. 44254.
ARGUED FEBRUARY 5, 1969.
DECIDED MAY 26, 1969.
Actions for damages. Effingham Superior Court. Before Judge Usher.
Odom Dendy, Thomas M. Odom, Florence Hewlett Dendy, for appellants.
George W. Fetzer, Allen Edenfield, Charles H. Brown, for appellee.
Subject to the requirements of the Civil Practice Act ( Code Ann. § 81A-108) for pleading defenses, the same liberal rules applicable to pleading plaintiffs' claims for relief will apply to defendants' pleadings.
ARGUED FEBRUARY 5, 1969 — DECIDED MAY 26, 1969.
In these three cases the plaintiffs are the driver and two passengers in an automobile with which the defendant collided. In each case, after the defendant filed his defensive pleadings to the plaintiff's complaint, which claimed the plaintiff was injured because of the defendant's driving negligently on the left side of the road, the plaintiff made a motion for judgment on the pleadings on the issue of negligence. In each case the plaintiff appeals from the judgment overruling his or her motion for judgment on the pleadings, certified by the trial court for review by direct appeal. The defendant's answers admitted that the defendant was driving on the left side of the road but denied that he was negligent for the reason that the collision was caused by the road surface and general conditions, i.e., vegetation growing along the right of way which obscured vision. In the case of the plaintiff who was driving the other automobile the defendant alleged that the plaintiff was negligent in the circumstances in failing to sound her horn or otherwise warn motorists approaching from the opposite direction.
1. The motion to dismiss the appeal is denied.
2. The plaintiffs argue that the fact of driving on the left side of the road is negligence per se, and the defendant's denial of negligence is but an allegation of a conclusion in the face of this fact. The statutory requirements to drive on the right side of the roadway (Ga. L. 1953, Nov. Sess., pp. 556, 581, 582, as amended; Code Ann. §§ 68-1633, 68-1634) on their face are not absolute and do not prohibit driving on the left at all places and in all circumstances. The allegations of the pleadings in the present case do not establish as a matter of law that the defendant's driving on the left side of the road was a violation of a statute and negligence per se. That the defendant at the trial may be unable to prove that his driving on the left side of the roadway was not a statutory violation does not authorize a judgment on the pleadings. M. L. Lee Co. v. Cardboard c. Corp., 36 F.R.D. 27, 29 (E.D. Pa. 1964). We cannot say that the pleadings in these cases present a "bare legal question." See Rosenhan v. United States, 131 F.2d 932, 934 (10th Cir. 1942).
Under the Civil Practice Act, general allegations are sufficient to support a plaintiff's claim for relief. Ga. L. 1966, pp. 609, 619, as amended ( Code Ann. § 81A-108); Vaughn v. McDaniel, 118 Ga. App. 498 ( 163 S.E.2d 844); Hunter v. A-1 Bonding Service, 118 Ga. App. 498 ( 164 S.E.2d 246), cert. denied 118 Ga. App. 866. In most cases the same liberal rule will apply to the defendant's pleadings. Code Ann. § 81A-108 (b, f); 2A Moore's Federal Practice 1813, § 8.19. Since the fact admitted by the defendant does not clearly entitle any of the plaintiffs to a judgment on their motions, the trial court did not err in overruling the motions for judgment on the pleadings. Nickel Rim Mines Ltd. v. Universal-Cyclops Steel Corp., 202 F. Supp. 170, 172 (D. N. J. 1962); 2A Moore's Federal Practice 2342, § 12.15; 1A Barron and Holtzoff 401, § 360.
Judgments affirmed. Jordan, P. J., concurs. Whitman, J., concurs specially.
1. I concur in the denial of the motion to dismiss the appeal.
2. I concur in the judgment of affirmance and would add thereto the following: Each of the plaintiffs' claims for relief alleges that in a public highway called Clyo and Springfield Road about six miles southwest of Clyo, Effingham County, Georgia, defendant negligently drove a motor vehicle on the wrong or left side of the road on a curve into plaintiffs' car which was on its right side of the road. The defendant in each of his second defenses alleges that the collision did not occur on a public highway called the Clyo and Springfield Road about six miles southwest of Clyo, but did occur on a county-maintained dirt road known as the Arnsdorff School Road at a point about three miles southwest of Clyo; and he also expressly denies that his motor vehicle operation was wrongful or negligent. These allegations constitute a denial of the place of the alleged collision and a denial of defendant's negligence.