1. (a) The motion to dismiss the writ of error in case number 34950 is denied.
(b) The petition shows that the sole proximate cause of the plaintiff's injuries was the intervening negligence of the defendant Tuggle; therefore, no cause of action is alleged against the defendant Wright Contracting Company, and the court erred in overruling its general demurrer.
(c) There is no merit in the contention that Wright Contracting Company admitted in its demurrer, pointing out a misjoinder of parties defendant, that the petition alleges a good cause of action as to it.
(b) The defendant Tuggle's special demurrer to the word "lurched" as used in the petition is meritorious, and the court erred in overruling that demurrer.
(c) The court did not err in denying the plaintiff's motion to declare the case in default as to the defendant Tuggle, based on the ground that Tuggle had failed to serve the plaintiff with copies of his defensive pleadings prior to filing such pleadings, as Ga. L. 1953, Jan.-Feb. Sess., pp. 21-22, amending Code 81-301, provides that the penalty for such failure to serve is a continuance of the entire proceeding to the next term of court upon motion of the injured party.
Willie I. Waller sued William Earl Tuggle, Wright Contracting Company, and Volunteer Clearing Company for damages allegedly caused by the joint negligence of the defendants. The plaintiff dismissed his action as to Volunteer Clearing Company and recast his pleading as to the defendants Tuggle and Wright Contracting Company. The recast petition alleges in substance: that the plaintiff owns and operates a service station on U. S. Highway 441, which runs from Eatonton to Milledgeville in a generally north-south direction; that the service station is located on the east side of the highway in such a fashion that the approaches and grounds of the station are adjacent to the public highway and its right-of-way; that prior to 1951, the front door of the service station was within approximately 20 feet of the highway, but during 1951 the defendant Wright Contracting Company graded the highway and lowered its level so that the road-bed was lowered approximately 10 to 12 feet lower than its former level, thus leaving the station at an elevation above the road-bed; that, in lowering the road-bed, the defendant company also changed the location of the road-bed in respect to the station front, and, whereas formerly the road-bed ran when approximately 20 feet of the front of the station, it was changed so that the road-bed is 50 or more feet away from said front, thus leaving a larger area in front of the station and leaving steep approaches from the new road-bed to the station front; that the company left the approaches on each side of the station at a dangerous elevation of approximately 24 degrees, and in an uneven, rough, and irregular state, constituting a hazard to automobiles and persons while on the approaches and the station premises; that the defendant Tuggle was at all times named herein as well aware of the dangerous and hazardous condition of the approaches, and was as familiar with the terrain of the approaches as was the plaintiff; that the plaintiff on numerous instances complained to the defendant company about the dangerous grade it left in front of his station, but it was not until in June, 1952, that the defendant company graded the approaches to a proper and safe grade; that on May 19, 1952, and before the company remedied the dangerous situation it had created the defendant Tuggle drove his 1952 Ford automobile on the aforesaid approaches and parked at one of the station's gasoline pumps between the station and the road-bed, heading in an easterly direction and at an angle of about 30 degrees with the front of the station; that the defendant Tuggle got out of the automobile and went into the store portion of the station, leaving the left front door of the automobile open; that, when Tuggle drove up the approaches, the plaintiff was standing in front of his station, and when Tuggle parked as aforesaid, the plaintiff left standing slightly to the left side of the rear of the automobile at a distance of approximately 15 feet therefrom, and so that he was approximately 3 feet to the left of the tracks that the automobile had made as it drove up; that as the plaintiff was so standing, not knowing that Tuggle had left the automobile unbraked and otherwise unsecured against movement, the automobile suddenly and without warning "lurched" backward toward the plaintiff, down the steep and dangerous grade mentioned before; that when the automobile "lurched" backward, it did not move backward in the same tracks it had made coming up the approaches, but the back wheels were 3 or 4 feet farther to the left of the original tracks, that when the plaintiff observed the automobile backing toward him it had traversed approximately 10 feet, that immediately upon seeing that he was about to be hit, the plaintiff tried to get out of the way, but could not move fast enough to avoid being struck, that the automobile was about 5 feet from the plaintiff when he first saw it, and was about 3 to 4 feet from him when he tried to jump out of the way, that the automobile "was traveling at least twice as fast as the plaintiff moved as he jumped away in an effort to escape the said automobile"; that the plaintiff was struck by the auto-
mobile and violently thrown to the ground, injuring him in enumerated particulars; that the defendant Wright Contracting Company was negligent in the following particulars: in lowering the road-bed directly in front of the plaintiff's station so that the road-bed was 10 to 12 feet lower than it was formerly, thus leaving the plaintiff's building at all elevation of 10 to 12 feet above the road-bed; in undertaking to grade the approaches on either side of the station but without doing so properly, and in leaving same so that the approaches on either side were at a dangerous elevation of approximately 24 degrees, and in an uneven and irregular state, constituting a hazard to automobiles and persons while on said approaches and premises; in not exercising ordinary care, caution, and diligence to leave the approaches in a road-worthy state, and so that same would not constitute a hazard to automobiles and the public generally at said premises, after undertaking to grade same, and to provide same as a way of ingress and egress to and from the plaintiff's premises; that the defendant Tuggle was negligent in the following particulars: in leaving his automobile on said approach, unattended, without having set the brakes so as to prevent the moving of the automobile after he had left it; in not warning the plaintiff of the dangerous condition in which he had left the automobile, so as to give the plaintiff an opportunity to protect himself from said defendant's negligence; in not exercising ordinary care and diligence in stopping the automobile after it had begun its backward motion, and prior to the time it collided with the plaintiff; in not doing anything whatever to prevent the plaintiff's being run against and thrown to the ground under the circumstances aforesaid; that the proximate cause of the plaintiff's injuries was the separate and distinct acts of negligence on the part of the defendants, which acted concurrently in producing the injuries as hereinbefore set forth.
The defendants' separate demurrers were overruled, and they except in separate bills of exceptions. The plaintiff by cross-bill of exceptions excepts to certain rulings.
1. We shall first consider case number 34950, Wright Contracting Company v. Waller.
(a) The defendant in error moves for a dismissal of the writ of error on the ground that the plaintiff in error did not name his joint defendant below as defendant in error in his bill of exceptions. The motion is without merit. Each defendant filed separate demurrers to the petition as recast, not challenging the plaintiff's right to any relief, but alleging that the petition did not state a cause of action as to the individual defendant so demurring. The defendants' separate demurrers were overruled, and they except by separate bill of exceptions. Where joint defendants demur separately to a petition, alleging that the petition does not state a cause of action as to the individual defendant demurring, and the court overrules such demurrers, each defendant may except to such judgment in a separate bill of exceptions without making the other defendant a party thereto. Cox v. Hardee, 135 Ga. 80 (1) (68 S. E. 932); Edwards v. United Foods Brokers, Inc., 195 Ga. 1, 5 (1) (22 S. E. 2d 812); Moore v. Harrison, 202 Ga. 814, 817 (44 S. E. 2d 551). The motion to dismiss the writ of error is denied.
(b) The petition does not allege a good cause of action against Wright Contracting Company. The case as to that company is controlled by Peggy Ann of Georgia, Inc. v. Scoggins, 86 Ga. App. 109
(71 S. E. 2d 89). In that case Peggy Ann of Georgia, Inc., operated a place of business commonly known as Peggy Ann Bus Stop, which was designated by Southeastern Greyhound Lines, Inc., as a "rest stop." "The approaches to the bus stop consist of a sharp incline on both the north and south approaches thereto," and the "whole parking area was on a steep slope." The plaintiff's decedent was a passenger on a bus which had been parked in the defendant's parking area and was fatally injured when the bus suddenly rolled backward from its parking place and the deceased jumped from the bus to escape the perilous situation. One of the acts of negligence alleged against Peggy Ann was failure "to keep and maintain a safe and proper place for buses to take on and discharge passengers and for buses to stop while loaded with fare-paying passengers . . ." This court held that the petition did not state a good cause of action against Peggy Ann of Georgia, Inc., because it showed that the proximate cause of the injuries sued for was the negligence of the bus company and its driver in operating and parking the bus under the circumstances with defective brakes, which negligence intervened to break any causal connection between any negligence alleged as to Peggy Ann and the injuries sued for, and which negligence could not reasonably have been foreseen by Peggy Ann of Georgia, Inc. We think that what the court said in the Peggy Ann case concerning the defendant Peggy Ann of Georgia, Inc., is equally applicable in the instant case to the defendant Wright Contracting Company, that is, that the negligence alleged against the defendant Tuggle in not setting the brakes on his automobile and in not otherwise acting to prevent its rolling backward was the intervening and efficient cause which proximately caused the plaintiff's injuries, which negligence was not reasonably foreseeable by Wright Contracting Company. The only reason the court in the Peggy Ann case went into the question as to whether the deceased was Peggy Ann's invitee was for the purpose of establishing what degree of care Peggy Ann owed the deceased. The court, in determining that she was an invitee determined that the care owed was ordinary care, the same degree of care owed by the defendant Tuggle to the plaintiff under the circumstances of this case.
(c) Wright Contracting Company demurred to the original petition on the grounds that "said petition contains a misjoinder of causes of action, one cause of action being alleged against the defendants William Earl Tuggle and Wright Contracting Company growing out of alleged injuries received by the plaintiff on May 19, 1952, . . . and alleging an entirely different and separate cause of action against the defendant, Volunteer Clearing Company." The plaintiff contends, "By the language used in the demurrer itself, when construed most unfavorably to the pleader, it is admitted as a proposition of law that the petition in this case sets forth a cause of action against Wright Contracting Company, which admission as to said principle of law is binding upon the pleader." The contention is without merit. In the same demurrer the defendant alleges that the petition sets forth no cause of action as to it. The only construction that can reasonably be placed on the demurrer is that the plaintiff sought to join, in a single petition, two separate causes of action against separate defendants, and in pointing out this defect the defendant in no way admitted that the petition on its merits alleged a good cause of action against it.
2. We next consider case number 34999, Tuggle v. Waller, and the cross-bill thereto, case number 35000. (a) As to the main bill, the petition alleges a good cause of action against the defendant Tuggle. The petition alleges that the defendant was negligent in parking his automobile on the incline and leaving it unattended without the brakes being set and without anything else being done to prevent its rolling down the incline. This court will take judicial cognizance of the fact that, in cases not involving unusual and extraordinary conditions and circumstances, effective and efficient brakes, if properly set, will hold an automobile on an incline, in the absence of some external force being applied. Georgia Highway Express v. Sturkie, 62 Ga. App. 741, 746 (9 S. E. 2d 683). It does not appear here that any external force was applied to the automobile, and it is a question for a jury as to whether the defendant Tuggle failed to exercise ordinary care and was negligent in leaving his automobile unattended on an incline without the brakes being set and without something else being done to prevent the automobile from rolling down the incline. Likewise, the question of the plaintiff's contributory negligence, if any, is one for a jury's determination, since we cannot say as a matter of law that he was negligent and that such negligence proximately caused his injuries. The plaintiff alleges that he did not know that the defendant had left the automobile unbraked and otherwise unsecured against movement, and that the automobile did not roll backward in the same tracks it made in parking.
(b) The only special demurrer to the petition with merit is the one directed to the allegation that the automobile "lurched" backward. It is contended that the allegation is "contradictory of physical laws, and the same cannot be the basis of a cause of action." Webster's New International Dictionary (2d ed.) defines "lurch" to be "To roll or sway suddenly to one side, as a ship or a drunken man." In Rome Ry. & Light Co. v. Keel, 3 Ga. App. 769 (60 S. E. 468), it was said: "The case rests solely upon the proposition that a release of the brakes caused the car to jump forward with a jerk; a proposition wholly contradictory of the laws of physics and to ordinary experience . . . The only forces tending to propel a car, when the current is off, are its momentum and, if the track be down-grade, gravity. Opposed to both of these forces is friction . . . When the current is not on, the releasing of the brakes does not, whether on level ground or on down grade produce any sudden jerk or jump of the car . . . A party will not be permitted to maintain in his pleadings a contradiction of those things of which the court is required to take judicial cognizance. Of the primary physical laws the courts must take notice. 16 Cyc. 854 (8). Therefore the pleading is demurrable when it sets up a contradiction of these laws. Since a physical impossibility can not exist at all, it can not be admitted even by demurrer. Such an allegation must be treated by the courts just as they would treat an allegation that what is not law is law, i.e., it must be wholly disregarded."
There is nothing alleged in the present case to show that any force except gravity acted in causing the automobile to move from its parking place. However, unlike the Keel case, the instant case is not rested "solely" on the proposition that the automobile lurched. Even with the word "lurched" stricken from the pleading, there is enough remaining to show that the automobile at least "rolled," however gradually and however slowly at first, from its parking place to where the plaintiff was standing some fifteen feet away and struck the plaintiff, who did not observe the automobile "rolling" or "coming" toward him until it was about five feet away. While the court erred in overruling the demurrer to the use of the word "lurched," this did not affect its ruling on the general demurrer.
(c) Even though the cross-bill of exceptions does not assign error on a final judgment, under the principle announced in Powell v. Powell, 179 Ga. 817
, 819 (3, 4) (177 S. E. 566) and A. C. Alexander Lumber Co. v. Bagley, 184 Ga. 352
, 363 (2) (191 S. E. 446), we may consider the assignment of error made therein. The plaintiff moved the court to declare the case in default because the defendant's defensive pleadings were not served on the plaintiff prior to their being filed. The court denied the motion and the plaintiff excepted. The plaintiff relies on the case of Payne v. Moore Finance Co., 87 Ga. App. 627
(74 S. E. 2d 746), to support his contention that failure of the defendant Tuggle to serve the plaintiff with copies of his defensive pleadings prior to their filing is jurisdictional and mandatory, and that such failure renders the case in default. In the Payne case the court had under consideration Ga. L. 1946, pp. 761, 769 (Code, Ann. Supp., 81-202), which provides: "Each copy [of a petition and process] served on the defendant shall show a date of service signed by the officer serving . . .", and construed the law to mean that the requirement stated above "is mandatory and jurisdictional in the absence of waiver of jurisdiction of the person." In the law treated in the Payne case, the General Assembly did not expressly provide for a penalty for failure of the serving officer to date and sign the copy of the petition and process served on the defendant, and the court had to determine the intent of the General Assembly from their language and the context of the statute. However, the law providing for service of defensive pleadings prior to their filing (Ga. L. 1953, Jan.-Feb. Sess., pp. 21, 22, amending Code 81-301) provides in clear and unequivocal language the penalty for failure so to serve prior to filing, as follows: "Provided, that if the party filing the demurrer, plea or cross-action fails to serve the opposite party as provided in this section, the judge shall continue the entire proceedings to the next term of court upon motion made by the injured party." Under such provision, in the instant case the failure to serve the plaintiff with the defensive pleading prior to its filing did not render the case in default, but merely opened the case for a motion by the plaintiff to continue to the next term.
The court erred in overruling the general demurrer of Wright Contracting Company, and in overruling the special demurrer to the word "lurched," filed by the defendant William Earl Tuggle. The court did not err in overruling the other demurrers of the defendant Tuggle, and in denying the plaintiff's motion to declare the case in default.