Summary
In Southeastern Stages v. Abdella, 77 Ga. App. 772, 777 (50 S.E.2d 85) it was held: "Where general negligence is alleged as the cause of an injury, the changing of allegations as to particular acts of negligence, even if the changes contradict the original, does not constitute a new cause of action."
Summary of this case from Community Gas Co. v. WilliamsOpinion
31854, 31858.
DECIDED OCTOBER 21, 1948.
Damages; from Fulton Superior Court — Judge Pomeroy. May 31, 1947. (Application to Supreme Court for certiorari.)
Andrews Nall, Stanley P. Meyerson, for Southeastern Stages.
Dunaway, Riley Howard, for Abdella.
Douglas, Evans Cole, and Samuel D. Hewlett, for Yellow Cab Co.
1. The motion to dismiss the cross-bill of exceptions is denied.
2. The exceptions contained in the cross-bill are without merit.
3. The motion to dismiss the main bill of exceptions is denied.
4. Count four, set forth by amendment to the petition, was not subject to demurrer on the ground that there was a misjoinder of parties and causes of action.
5. Each count of the four-count amendment to the petition set forth a cause of action as against general demurrer.
DECIDED OCTOBER 21, 1948.
This is the second appearance of this case in this court. For the decision on the first writ of error, see 75 Ga. App. 38 ( 41 S.E.2d, 799). Before the remittitur became the judgment of the lower court, the plaintiff, by amendment, struck the entire original petition as amended up to that time and filed an amendment setting up four new counts. The allegations of the petition as it existed at the time of the first appeal were substantially as follows: that on March 5, 1946, at about 1:40 p. m., Abdella was a passenger on a bus of Southeastern Stages, a common carrier of passengers, having boarded the bus in Athens, Georgia, for transportation to the Atlanta Bus Station; that Southeastern Stages owed him the duty of extraordinary care; that the bus neared the terminal in Atlanta, traveling west on Cain Street, and entered the intersection of Cain and Peachtree Streets, public highways of the State; that at the time and place the bus was traveling in said intersection a taxicab of the Yellow Cab Company was being driven south on Peachtree Street at a high rate of speed, in excess of 50 miles per hour when the cab approached and entered the intersection; that the bus was traveling in excess of 20 miles per hour when it entered the intersection, but at the time of collision in the intersection it was traveling at 20 miles per hour; that there was a traffic signal light at the intersection of said streets; that the driver of the cab ran into the bus while the signal light was green as to the bus and red as to the cab; and that the bus and cab collided, injuring the plaintiff while standing in the bus, etc.
The negligence originally charged against Southeastern Stages was: (1) in failing to drive the bus at a careful and prudent speed, having due regard for the traffic, surface, width of street, etc., in violation of an ordinance of the City of Atlanta; (2) in driving the bus at such speed as to endanger the life, limb, or property in violation of an ordinance; (3) in driving the bus carelessly and heedlessly in disregard of the rights and safety of others in violation of an ordinance; (4) in not maintaining a proper lookout ahead in the direction in which the bus was traveling, in violation of the requirements of extraordinary care and diligence; (5) in entering the intersection at an excessive speed of 20 miles per hour in violation of the requirements of extraordinary care and diligence; (6) in failing to observe the taxicab approaching; (7) in failing to apply brakes and reduce speed on approaching and entering the intersection in violation of the requirements of extraordinary care and diligence. In count one, an additional fact with reference to the negligence of the bus driver was alleged, to the effect that as the bus approached Peachtree on Cain the traffic light facing the driver was red and changed to amber as the bus reached the intersection, but the driver without stopping and waiting for the green light entered the intersection on the amber light in violation of a city ordinance. In count two, the following new fact was alleged as to the negligence of the bus driver, to wit, that the bus stopped on approaching Peachtree while facing a red traffic light until the light changed to amber, when without waiting for the green light the bus driver immediately started the bus into the intersection and attempted to traverse it on the amber light, in violation of a city ordinance. Count three alleged a new fact in the same respect, to wit, that the bus driver approached the intersection at 20 miles per hour, facing a red light which changed to amber and then to green just as he entered the intersection without slackening his speed, etc. Count four alleged that, as the bus driver approached Peachtree on Cain Street with the traffic light facing him red, he, without stopping, entered the intersection on the red light in violation of the city ordinance. Other acts of negligence were substantially the same as those contained in the original petition as amended except as affected by the new fact alleged in each count. The demurrers of Southeastern Stages which were passed on and overruled are as follows: (1) the petition as amended prior to the allowance of the amendment of April 28, 1947 (the one setting up four counts), did not state a cause of action against this defendant, and the petition affirmatively showed upon its face when taken in the light of the amendment filed thereto next before the amendment of April 28, 1947, that the proximate cause of the occurrence complained of therein was the negligence of the defendant, Yellow Cab Company, or that of the plaintiff or both, and there was, therefore, nothing to amend by, insofar as this defendant was concerned. (2) The amendment allowed April 28, 1947, resulted in both a misjoinder of parties and causes of action, in that all counts do not state a cause of action against both defendants. Demurrers to count one are as follows: "(1) The plaintiff's petition as amended prior to the allowance of the amendment of April 28, 1947, did not state a cause of action against this defendant, and the petition affirmatively showed upon its face when taken in the light of the amendment filed thereto next before the amendment of April 28, 1947, that the proximate cause of the occurrence complained of therein was the negligence of the defendant, Yellow Cab Company, or that of the plaintiff or both, and there was, therefore, nothing to amend by, insofar as this defendant was concerned. (2) Count one fails to set forth any cause of action against this defendant. (3) Said count one changes and sets up a new, different, and distinct cause of action than that set forth in the original petition (as amended) by amendment in violation of the law of Georgia and should, therefore be stricken. (4) The entire theory of the case and the nature of the occurrence charged by said count one thus substituted for the petition of the plaintiff as amended . . sets up a new, distinct, and different cause of action." The demurrers to count two, which were ruled on, are the same as demurrers 1 and 2 to count one. The demurrer to count three which was passed on was general, to the effect that the negligence of the Yellow Cab Company was the proximate cause of the injuries. One of the demurrers to count four was general, and the other demurrer to count four which was passed on is as follows: "It appears from the allegations of count four of the petition that the direct and proximate cause of the occurrence complained of was the negligence of this defendant, and that any negligence of which the defendant, Yellow Cab Company, may have been guilty [was] too remote in the chain of causation to be chargeable as negligence proximately contributing to the occurrence complained of; thus a misjoinder of parties and causes of action result, in that in other counts the plaintiff seeks to allege a case of joint and concurrent negligence against both defendants." The other demurrers were not passed on by the trial judge.
Southeastern Stages except by a main bill of exceptions to the overruling of the above demurrers. The defendant in error, Abdella, excepts by cross-bill to the judgment of the court overruling his motion to dismiss the defensive pleadings of Southeastern Stages, the ground of which motion was that the demurrers were not filed during the same term at which the amended petition was allowed and ordered filed, and that the time for filing the pleadings was extended by the court without notice to or the consent of the defendant in error, Abdella. Southeastern Stages moves to dismiss the cross-bill of exceptions, on the ground that the exceptions pendente lite, excepting to the order overruling the motion to dismiss the defensive pleadings, were certified by the judge without reasonable notice to the attorney for Southeastern Stages to afford an opportunity to be heard, the record failing to show such notice as the law requires. The defendant in error, Abdella, moves to dismiss the main bill of exceptions on the ground that the plaintiff in error has abandoned the general grounds of the demurrers and that otherwise there is no renewable judgment.
1. The motion to dismiss the cross-bill of exceptions is denied. If the new rule applies to exceptions pendente lite, whether notice was given to opposing counsel is not reviewable. Midtown Chain Hotels Company v. Bender, 77 Ga. App. 723 ( 49 S.E.2d 779).
2. This action was filed April 1, 1946. The plaintiff, on April 28, 1947, at the March term, amended his petition by striking the original and substituting a petition in four counts. The time for filing demurrers to this amended petition was extended beyond the March term, 1947, into the May term, a period of more than 15 days, without notice to or consent of the plaintiff or his counsel. The subject-matter of the cross-bill of exceptions is an exception to the judgment of the court refusing to strike the demurrers on the grounds indicated. Even if the old requirement of Code § 81-301 applies to a demurrer to an amended petition, the section has been amended so that all demurrers and pleas of the defendant are not required to be filed at the first term, but are required to be filed on or before appearance day. Ga. L. 1946, Code, Ann., § 81-301. There is no 15-day requirement as to demurrers to amended petitions. Code § 81-1312 provides for a reasonable time for answering material amendments. No abuse of judicial discretion is shown in this case in the allowance of additional time in which to demur to the very lengthy four-count amendment.
3. The motion to dismiss the main bill of exceptions is denied. Southeastern Stages has not waived its general demurrers and one special demurrer as to misjoinder of parties and causes of action was overruled, which is a judgment that is reviewable as to count four.
4. The court did not err in overruling the special demurrers to count four. This count does not show on its face that the negligence of the cab company did not contribute as a proximate cause in bringing about the injuries complained of. It is not necessary to go into detail as to the various allegations. Suffice it to say that the count sufficiently alleges negligence on the part of the cab driver, even if the bus was entering the intersection on a red light. The fact that the bus driver was negligent would not immunize the cab driver from his obligation to exercise due care under the circumstances, and in the exercise of ordinary care to avoid the negligence of the bus driver, discoverable by ordinary care.
5. The general demurrers to the whole amended petition and to each count separately were properly overruled. The principal contention of the plaintiff in error is that the plaintiff below abandoned his original petition by striking it and substituting the four-count petition. We cannot agree with this contention. The substituting of the four-count petition amounted to no more than amending the original petition so as to make one count, and the addition of three more counts. The demurrers to the petition had been overruled by the trial court. The reversal of the judgment by this court left the case still pending in the lower court subject to valid amendments before the judgment of this court was made that of the trial court. Moore v. Gregory, 72 Ga. App. 614 ( 34 S.E.2d 624). This case differs from a case where a demurrer to a petition is sustained and that judgment affirmed by an appellate court. In such a case the petition is not thereafter amendable to include allegations which might have been added by amendment. The difference is that in the case of the sustaining of a demurrer and affirmance thereof, the opportunity of amendment has been foreclosed. In such cases as this it is still open to the same extent as it would have been if the trial court had ruled that the original petition did not state a cause of action and that he would sustain the demurrer if the petition was not amended. In that case an amendment would be allowable if proper. The questions now are: was there enough to amend by, and was a new cause of action set forth? Code § 81-1302 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." This section controls this case and we think fits it is every particular. Where general negligence is alleged as the cause of an injury, the changing of allegations as to particular acts of negligence, even if the changes contradict the original, does not constitute new causes of action. We do not deem it necessary to cite the multitude of cases which sustain this ruling nor to cite cases which are distinguishable, wherein different and distinct causes of action were sought to be set up by amendment.
The court did not err in overruling the demurrers. No ruling is made on the demurrers which the trial court did not consider and pass on.
On rehearing, the judgments on the main and cross-bills of exceptions are affirmed by the two divisions of this court sitting as one court, under authority of the act of 1945 (1945 p. 232, Code, Ann. Supp., § 24-3501.)
Judgments affirmed. Sutton, C. J., MacIntyre, P. J., and Felton, Gardner, Parker, and Townsend, JJ., concur.