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H. W. BROWN TRANSPORTATION CO., INC., et al. v. MORRISON, by next friend.
34771.
Action for damages. Before Judge Atkinson. Chatham Superior Court. May 5, 1953.
SUTTON, C. J.
1. The motion to dismiss the bill of exceptions for want of necessary parties thereto is denied.
2. A plaintiff, in an action brought against more than one joint tortfeasor, may amend by striking some of them as defendants without affecting his rights as to the other defendants, and the court did not err in dismissing the plea in abatement on this account.
3. The court did not err in allowing the two amendments to the petition, over the objection that the amendments were inconsistent and sought to add a new cause of action.
4. The petition as amended set out a cause of action, and the court did not err in overruling the defendants' general and special demurrers thereto.
James L. Morrison, a minor, by his mother, Mrs. A. F. Posey, as next friend, filed this suit in Chatham Superior Court against H. W. Brown Transportation Co., Inc., a corporation of the State of New Jersey, and its insurance carrier, American Fidelity & Casualty Co., Inc., and against John N. Hoff, Inc., a corporation of New Jersey, and its insurance carrier, Selected Risks Indemnity Company, and alleged substantially: (3) that, on January 17, 1952, said Brown and said Hoff were jointly operating a tractor-trailer truck on U. S. Highway No. 17, in Chatham County, Georgia, by their employee, Joseph S. Godlewsky, said Brown and Hoff being jointly engaged as public motor carriers in interstate commerce at said time and place in the operation of the tractor-trailer truck; (6) that on said data the plaintiff, a sergeant in the Marine Corps of the United States, stationed at Parris Island, South Carolina, at a salary of $150 per month, was the owner of a described Chrysler automobile of the market value of $1,200; (7) that on January 16, 1952, he had come to Savannah, Georgia, in said automobile to spend the day, and, at about 1:30 a.m. on January 17, 1952, he and several other members of the Marine Corps were returning in his automobile to Parris Island on U. S. Highway No. 17; (8) that, at said time and date, the tractor-trailer truck of said Brown and Hoff, being operated by their named employee, had crossed the Savannah River Bridge on said highway and had reached a point about 500 feet on said highway in Chatham County, Georgia, west of the bridge, and was proceeding around an eight-degree curve at said location, the said truck and its load exceeding 16,000 pounds in weight and, under the laws of Georgia, being obligated not to exceed a speed of 35 miles per hour, and, at said time and place, the plaintiff was operating his Chrysler automobile on the south side of said highway, on the inside of the curve, at a reduced speed of 40 miles per hour; (9) that, at said time and place, as the plaintiff's automobile was about to pass said tractor-trailer truck, which was coming on the opposite side of the highway and in the opposite direction from that in which the said Chrysler automobile was traveling, and while the position of the Chrysler automobile was on the right side of the highway and before coming abreast of the truck, said driver of the tractor-trailer truck suddenly and without warning or notice to the plaintiff negligently drove the said truck, which was being then and there operated carelessly and negligently and in violation of law at a speed of 60 miles per hour, across the middle line of said highway on said curve, and crashed into the left side of the plaintiff's automobile with great force and violence, which caused the plaintiff to lose control of his automobile, and the automobile left the highway on the plaintiff's right side and crashed into a tree, and the plaintiff was painfully, seriously, and permanently injured; that the plaintiff had his bright lights dimmed at said time and place, and the crossing of the truck over the middle line of said highway on said curve was so quick and sudden that the plaintiff had no time in which to avoid said truck colliding with the plaintiff's automobile; (10) that the plaintiff's automobile was totally demolished, and that its market value before being struck by said truck was $1,200, and its value thereafter was nothing, the plaintiff's damage to his automobile being alleged as $1,200. It is alleged in paragraphs 11 and 12 of the petition that the plaintiff was seriously and permanently injured, and his injuries are specified ,and set out in detail in these paragraphs, it being alleged that he sustained said injuries on account of the carelessness and negligence of the defendants as set forth in his petition. He laid his damages in the sum of $71,200, and alleged in paragraph 13 that his action therefor was brought jointly against said
Brown and Hoff and their said insurance carriers, and judgment was sought against the defendants for the amount of his alleged damages.
The defendants, H. W. Brown Transportation Co., Inc., and American Fidelity & Casualty Co., Inc., demurred to the plaintiff's petition on the grounds: (1) generally, that it failed to set forth a cause of action and was insufficient in law; and specially, (2) to paragraph 6 of the plaintiff's petition, with reference to his being a sergeant in the Marines at a salary of $150 per month, etc., on the ground that said allegation was irrelevant, indefinite, and insufficient; (3) to paragraph 8, in that it was not alleged that the driver of the truck was acting within the scope of his employment at the time of the alleged collision; (4, 5) to paragraph 9, in that said allegations were indefinite as to the position of the truck at the time of the alleged collision, it not being alleged there or elsewhere in the petition how far across the center line of the highway the truck traveled to the place where it collided with the plaintiff's automobile.
The plaintiff amended his petition: (1) by striking therefrom as defendants John N. Hoff, Inc., and its insurance carrier, Selected Risks Indemnity Company, and by striking from his petition all reference to said two defendants wherever their names appeared in the petition; (2) by adding to paragraph 3 of the petition the allegation that the said Godlewsky, in driving and operating said truck at said time and place, was the duly authorized servant and employee of the transportation company, was in and about its business, and was acting within the scope of his authority; (3) by striking from paragraph 6 of the petition the words, "having been a short time prior to January 17, 1952, promoted to a sergeant on account of his service in the war in Korea"; and (4) by adding to paragraph 9 of the petition the following: "When the said driver of the said Brown, to wit, the said Joseph S. Godlewsky, carelessly drove the said tractor-trailer unit across the center line of the said highway, as set out in this paragraph, the automobile driven by the said Morrison was from 2'/2 to 3 feet to the right of the said marked center line of said highway, and thus was on the said Morrison's right side of the said highway where he had a right to be, and accordingly the said tractor-trailer unit was driven by the said Godlewsky the foregoing distance across the marked center line of said highway, etc."
The defendants, H. W. Brown Transportation Company, Inc., and American Fidelity & Casualty Company, Inc., objected to the plaintiff's said amendment on the ground that such amendment was inconsistent and an attempt to add a new cause of action. Said two defendants, subject to their objections to the plaintiff's said amendment, filed their plea in abatement to the amended petition, on the grounds that proper parties defendant were not joined in said action, due to the fact that the tractor-trailer involved in the alleged accident was the property of John N. Hoff, Inc., or John N. Hoff, and that the driver of the vehicle involved in the alleged accident is, or was at the time of the accident, an employee of John N. Hoff, Inc., or John N. Hoff, and acting within the scope of his authority as such.
The said two defendants, subject to their objection to the plaintiff's amendment and their plea in abatement, demurred to the petition as amended on the following grounds: (1) that, as amended, it failed to set forth a cause of action and was in-sufficient in law; (2) specially, to paragraph 6 of the petition as amended, with reference to the plaintiff's having been promoted to be a sergeant in the Marines and as to his salary, etc., on the ground that said allegation was irrelevant and insufficient; (3) specially, to paragraph 8 of the amended petition, on the ground that the laws of Georgia mentioned therein are not set out with sufficient particularity; (4-8) specially, to paragraph 9 on the grounds, that the allegations are indefinite as to the position of the truck at the time of the alleged collision; that it is not alleged how far across the center line of the highway the truck traveled to where it collided with the plaintiff's automobile, that the law allegedly violated is not set forth with sufficient particularity, that the point at which the truck and automobile collided is not set forth with sufficient particularity, and that the allegation that the truck crossed over the middle line of the highway on said curve so quickly and suddenly that the plaintiff had no time in which to avoid the said truck colliding with his automobile is a conclusion of the pleader; (9) specially, to paragraph 11 of the petition as amended, which states that the plaintiff will never be able to do any work of any kind during the remainder of his life and that his earning capacity has been totally destroyed, on the ground that said allegation is a conclusion of the pleader not borne out by the facts pleaded; and (10) specially, on the ground that the petition as amended contains inconsistent allegations.
The plaintiff filed a second amendment to his petition by striking the word "jointly" wherever it appeared in said petition with reference to Hoff and its insurance carrier,' and by adding a new paragraph, 16, as follows: "The said Joseph S. Godlewsky, then and there driving and operating said tractor-trailer unit as an employee and agent of the defendant company was negligent in the following particulars: (a) by violating 38-301 [68-301?] of the Code of Georgia by exceeding the speed limit set out therein, to wit, 35 miles an hours, as hereinbefore more particularly set out; (b) by violating Code 68-303 (b): 'An operator meeting another vehicle coming from the opposite direction on the same highway shall turn to the right of center on the highway so as to pass without interference'; (c) by violating Code 68-303 (e): 'An operator in rounding curves shall reduce speed and shall keep his vehicle as far to the right on the highway as reasonably possible,' and in that the said operator failed to reduce his speed, as hereinbefore set out."
The defendants, H. W. Brown Transportation Co., Inc., and American Fidelity & Casualty Co., Inc., filed their objection to the last-mentioned amendment on the ground that it was inconsistent and attempted to add a new cause of action, and they renewed their objection to the first amendment, renewed their plea in abatement to the petition as amended as stated above, and renewed their demurrers as above stated to the petition after the last amendment thereto was allowed.
The trial judge, on May 5, 1953, in one comprehensive judgment overruled the objections of the said defendants to the amendments to the petition, overruled the demurrers, general and special, to the petition as amended, and overruled and dismissed the plea in abatement; and said defendants assign error on said rulings and judgment.
(After stating the foregoing facts.) 1. The motion by the defendant in error to dismiss the bill of exceptions because John N. Hoff, Inc., and its insurance carrier were not made parties to the bill of exceptions is without merit. Both of these parties had been stricken by the plaintiff as defendants; the exception to that action has been abandoned; and they are not necessary parties to the bill of exceptions. Salter v. Heys, 207 Ga. 591 (63 S. E. 2d 370). The motion to dismiss is denied.
2. This tort action as originally filed was against four defendants, as shown by the above statement. The plaintiff voluntarily struck two of these parties from the suit. "When two or more persons shall be sued in the same action, either on a contract or for a tort, the plaintiff may amend his petition by striking out one or more of such defendants, and proceed against the remaining defendant or defendants, if there shall be no other legal difficulty in the case." Code 81-1306. Joint tortfeasors may be sued jointly or severally, and where the plaintiff sues more than n one such defendant, he may amend by striking some of them as defendants without affecting his rights as to the other defendants. City of Atlanta v. Harris, 52 Ga. App. 56, 57 (2) (182 S. E. 202); Black v. Davidson, 65 Ga. App. 780 (16 S. E. 2d 525); Atlanta Coca-Cola Bottling Co. v. Dean, 43 Ga. App. 682 (160 S. E. 105). Accordingly, where the plaintiff struck John N. Hoff, Inc., and its insurance carrier as defendants in this suit--which, we hold, he had a right to do--the plea in abatement on this account, filed by the other two defendants, H. W. Brown Transportation Co., Inc., and American Fidelity & Casualty Co., Inc., was without merit, and the trial judge did not err in overruling and dismissing such plea. See the Code section and authorities above cited, and also see Council v. Nunn, 41 Ga. App. 407 (153 S. E. 234); Wall v. Wall, 176 Ga. 757 (168 S. E. 893); Mashburn v. Dannenburg Co., 117 Ga. 567 (44 S. E. 97). The case of Mott v. Hall, Moses & Co., 41 Ga. 117, cited by the plaintiffs in error, was a suit on a joint note, and is not applicable or controlling in the present tort action.
3. The two amendments to the petition were not subject to the objections interposed thereto, as now insisted upon, and the court did not err in allowing the amendments over such objections.
4. The petition as amended set out a cause of action against H. W. Brown Transportation Co., Inc., and its insurance carrier, American Fidelity & Casualty Company, Inc., and the court did not err in overruling the general demurrer to the petition. The defendants' special demurrers to-the petition as amended are set out in the above statement of facts, and need not be referred to again in detail. We have carefully considered these demurrers, and we are of the opinion, and so hold, that they are without merit, and that the court did not err in overruling the same.
Judgment affirmed. Felton and Quillian, JJ., concur.
Myrick & Myrick, contra.
Kennedy & Sognier, for plaintiffs in error.
DECIDED OCTOBER 24, 1953 -- REHEARING DENIED NOVEMBER 7, 1953.
Saturday May 23 04:11 EDT


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