Opinion
33242.
DECIDED OCTOBER 19, 1950. REHEARING DENIED DECEMBER 15, 1950.
Damages; from Whitfield Superior Court — Judge Paschall. June 22, 1950.
Mitchell Mitchell, for plaintiff in error.
Pittman, Hodge Kinney, Alston, Foster, Sibley Miller, William B. Spann Jr., contra.
This is a companion case to that of Hayes v. Simpson, ante, p. 22. While the defendant in error herein was a guest of Simpson son riding in the car with him at the time of the collision with the wrecker of the plaintiff in error, and accordingly the negligence of Simpson was not imputable to him, nevertheless, ground 2 of the general demurrer herein had the same purport as ground 2 of the general demurrer of the Simpson case, it contending that the petition affirmatively showed that the injury and damage for which the plaintiff sues was caused solely by the negligence or want of ordinary care on the part of Simpson. It follows that the judgment of the superior court sustaining this ground of the demurrer became the law of the case to the effect that the original petition before amendment showed on its face that this plaintiff's injury was caused solely by the negligence of Simpson. The amendment allowed and filed within the required time failed to improve the original petition in this respect. The judgment here is therefore controlled by Hayes v. Simpson, supra.
The trial court erred in overruling the motion of counsel for the plaintiff in error to strike the case from the docket.
Judgment reversed. MacIntyre, P. J., and Gardner, J., concur.