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Action for damages; from Savannah City Court-- Judge Heery. August 26, 1952.
1. "In order for an invited guest in an automobile to recover of the owner and driver, it must be pleaded that such negligence was gross negligence." The petition here alleges gross negligence.
2. The question of res adjudicata must be raised by a plea to that effect and cannot be raised by demurrer when the facts do not appear in the petition. Furthermore, to be sufficient in law, such a plea must allege chat the former suit was between the same parties, based on the same subject matter.
On April 21, 1952, Alton J. Owens filed his petition in the City Court of Savannah against J. C. Williams, seeking to recover damages on account of certain personal injuries and for the loss of his wife's services, alleged to have resulted from the gross negligence of the defendant in the operation of his automobile, in which the plaintiff and his wife were riding as guests. The petition alleged substantially the following: On the evening of January 19, 1951, the defendant invited the plaintiff and his wife to ride in a 1947 Chevrolet panel truck of the defendant, and they entered this truck; that during the course of the ride the defendant stopped a short time at a place known as the Papermakers Club; that after a short visit the plaintiff, his wife, and the defendant re-entered the truck and continued their journey; that when they got some 300 yards from the club, the defendant turned around and drove back, and, while sitting in the truck, drew his pistol and began shooting at the front of the building; that the defendant was in the driver's seat and fired out of the right window of the truck across the face of the plaintiff, who was sitting next to this window; that the plaintiff thereupon demanded that the defendant allow him to get out of the truck and walk home; that the defendant refused this request and insisted that the plaintiff and his wife remain in the truck, and he then drove away from the building at a reckless and excessive speed towards town going east on Augusta Avenue; that Augusta Avenue and Comer Street are streets in said City of Savannah and part of the State Highway system; that the plaintiff had no control over the operation of the truck but was the defendant's guest, and the defendant was driving such truck; that, as the defendant approached the intersection of Comer Street with Augusta Avenue, he negligently drove and operated said automobile truck at an excessive, reckless, and dangerous speed, under the circumstances, of fifty miles an hour, having no regard to the use of the street, the condition thereof, the same being in a run-down and broken condition, and the position of the buildings on either side thereof, which endangered the safety not only of the plaintiff and his wife, but also of other persons then on said street; that the defendant failed to reduce his speed on approaching the intersection, where he had to make a left turn into Comer Street, in order to proceed toward town, despite the pleas of the plaintiff and his wife that he do so; that Augusta Avenue does not go through but ends at this intersection, the east end thereof being bounded by railroad property, and the defendant, failing to keep a lookout ahead and failing to reduce his speed, failed to turn to the left into Comer Street, but because of his speed ran off at said unlawful and excessive speed into the railroad property and into a pile of railroad crossties, and the plaintiff was painfully and permanently injured, and his wife was permanently injured and disabled and the plaintiff has been deprived of her assistance and services in their home, which were worth $156 annually to the plaintiff. The plaintiff set up that he has been deprived thereof and also that he had to expend $728.15 thus far for medical expenses for
himself and wife, and also that he lost three weeks' salary, $165, being unable to work on account of his injury. The plaintiff alleged that he will be permanently deprived of his wife's services. He set up that the defendant was grossly negligent in driving his truck at said time and place at a speed of fifty miles an hour, in violation of the law of Georgia, in driving the same in a reckless manner and in failing to slow down in order to turn into Comer Street, and in failing to keep a proper lookout ahead and in looking to the side and refusing to permit the plaintiff and his wife to leave the truck before the collision, and in refusing to allow them to leave, and that he shot said pistol across the plaintiff's face, thus coercing him to remain in the truck.
The defendant demurred generally to the petition and demurred to and moved to strike various paragraphs thereof, setting out that this cause of action had been adjudicated in the Court of Appeals on March 7, 1952, when the court ruled that the general demurrer to the petition by the plaintiff's wife against this defendant should have been sustained by the trial judge, in that it appeared from the petition that she was injured as a result of her own negligence in getting back into said truck at the Papermakers Club. The defendant also demurred to the petition insofar as it sought to recover for the injuries sustained by the plaintiff's wife on the ground that it had been adjudicated that she was injured as a result of her own failure to use due care for her safety.
On August 26, '1952, the trial judge passed this order: "The within demurrer and motion to dismiss having come on to be heard this day, the general demurrer and each and every paragraph of motion to dismiss is hereby sustained." To this judgment the plaintiff excepts.
"In order for an invited guest in an automobile to recover of the owner and driver of the car for an injury occasioned by the negligence of the driver, it must be pleaded that such negligence was gross negligence." Epps v. Parrish, 26 Ga. App. 399 (106 S. E. 297). The court said: "In order for the invited guest to recover from the owner and operator of an automobile for an injury received by reason of the negligent driving or handling of the machine, there must be facts pleaded that show gross neglect upon the part of the owner and driver of the machine." See Self v. Dunn, 42 Ga. 528, dealing with the liability of a gratuitous ferryman. In Frye v. Pyron, 51 Ga. App 613 (181 S. E. 142)--where this court said, "One riding by invitation and gratuitously in another's automobile cannot recover for injuries caused by the other's negligence in driving, unless it amounted to gross negligence"--the petition was held to allege gross negligence where it appeared that the defendant drove his car at an excessive rate of speed and, upon being admonished and asked to decrease his speed, increased it, and otherwise operated his car in disregard of the rights of others and in a wanton manner and in disregard of the plaintiff's safety. See Slaton v. Hall, 172 Ga. 675 (158 S. E. 747), where it was alleged that the defendant approached a bridge at night at sixty miles an hour and after he had been warned to drive cautiously; and it was held that the petition was not demurrable in failing to allege facts from which the jury could find gross negligence. Here the petition alleged that the defendant approached this intersection, where the street on which he was driving came to an end, and was bounded by railroad property, at an excessive, reckless, and unlawful speed of 50 miles an hour, and did not turn to the left into the street, but ran off onto the railroad property and collided with a pile of crossties, after being admonished to slow down and reduce his speed, but drove at such speed without regard to the condition of the street and the safety of the plaintiff and his wife, and failed to keep a lookout ahead. In these circumstances, the petition did not as a matter of law fail to allege facts from which the jury could find gross negligence.
2. However, it is insisted that the petition was subject to dismissal on general demurrer because it had been adjudicated that the defendant was not liable by reason of the operation of the truck on said occasion. This is so, the defendant contends, because the wife filed suit against the defendant in said court, in which she sought damages for personal injuries resulting to her by reason of the defendant's gross negligence in the operation of his truck on the occasion in question, to which petition the defendant had demurred generally, which demurrer was overruled, and this court on March 7, 1952, reversed that ruling, holding that the petition in that case "showed that the plaintiff did not exercise ordinary care for her own safety." Williams v. Owens, 85 Ga. App. 549 (69 S. E. 2d, 787). The plaintiff in the present case was not a party to the wife's petition in her petition it was alleged that the defendant stopped his truck at the Papermakers Club, where the defendant partook of intoxicating liquors. No such allegation appears in the present petition. This court held in the wife's case that it appeared from the petition that the defendant was under the influence of intoxicating liquor when she got back into the truck at this club and he drove off therefrom. The decision in the wife's case was based upon the allegations made in her petition. "A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered, until such judgment shall be reversed or set aside." Code, 110-501. "If upon demurrer the court shall decide upon the merits of the cause, the judgment may be pleaded in bar of another suit for the same cause." 110-504. "A former recovery, or the pendency of a former suit for the same cause of action, between the same parties, in the same or any other court that has jurisdiction, shall be a good cause of abatement; but if the first action is so defective that no recovery can possibly be had, the pendency of a former suit shall not abate the action." Code, 3-607. This law applies to torts. 105-1805.
A judgment sustaining a general demurrer to a petition brought to recover damages caused by the alleged negligence of the defendant will bar a second suit by the same plaintiff against the same defendant for the same alleged cause of action, though the grounds of negligence upon which the second petition is based may be different from those embraced in the first. Greene v. Central of Georgia Ry. Co., 112 Ga. 859 (38 S. E. 360). Also, if a petition is dismissed on general demurrer which extends to the merits of the case by charging that the petition fails to allege a cause of action, the judgment of dismissal, unexcepted to, will be conclusive between the parties in a subsequent suit based on the same cause of action. Dodson v. Southern Ry. Co., 137 Ga. 583 (73 S. E. 834); Fain v. Hughes, 108 Ga. 537 (33 S. E. 1012); McDonald v. Georgia Southern & F. Ry. Co., 138 Ga. 15 (74 S. E. 691). A judgment overruling a general demurrer to the petition, reversed on appeal to this court, is an adjudication that the petition was subject to such general demurrer, and can be pleaded in bar to a subsequent petition by the same plaintiff against the same defendant based on such cause of action.
So, "if a court of competent jurisdiction, in dismissing a suit on demurrer, necessarily decides upon the merits of the case, the decision, as between the same parties and upon the same subject matter, may be pleaded in bar of another suit." Hill v. Armour Fertilizer Works, 21 Ga. App. 45 (93 S. E. 511). However, "a judgment can not be the basis of a plea of res adjudicata in an action in which the parties are not the same as in the case in which the judgment was rendered, although the cause of action be the same in both cases." Floyd & Lee v. Boyd, 16 Ga. App. 43 (3) (84 S. E. 494). To the same effect see Buie v. Buie, 175 Ga. 27 (3) (165 S. E. 15); Winkles v. Simpson Grocery Co., 138 Ga. 482 (2b) (75 S. E. 640). The husband in the present suit was neither a party nor a privy in the fonder suit of his wife for damages on account of personal injuries sustained by the alleged negligence of the defendant, within the meaning of Code 110-501. Blakewood v. Yellow Cab Co. of Savannah, 61 Ga. App. 149 (4) (6 S. E. 2d, 126). See McVeigh v. Harrison, 68 Ga. App. 316, 320 (4) (22 S. E. 2d, 752). "Former judgment was not binding on persons who were not parties to previous suit." Stanley v. Laurens County Board of Education, 188 Ga. 581 (2) (4 S. E. 2d, 164). "Res judicata and estoppel by judgment can only be set up in a subsequent suit between the same parties or their privies." Harris v. Jacksonville Paper Co., 67 Ga. App. 759, 765 (21 S. E. 2d, 537). Furthermore, the defendant seeks in the present case to raise the question of a former adjudication concluding the present plaintiff by demurrer to the petition. The fact that there was a former suit by the wife against this defendant for personal injuries growing out of his alleged negligence in the operation of his truck, in which a general demurrer was overruled and that judgment reversed by this court, does not appear from this plaintiff's petition, but appears from the general demurrer of the defendant thereto. It is elementary that, where the fact of the former suit and judgment therein do not appear on the face of the petition, a plea of res adjudicata properly pleading the former adjudication is the remedy, and not a demurrer to the petition. "A former adjudication of the same cause of action, not appearing from the petition, is not ground for demurrer, but for plea." Reid v. Caldwell, 120 Ga. 718 (5) (48 S. E. 191). See Sumner v. Sumner, 121 Ga. 1 (6), 10 (48 S. E. 727), and cit.; Rozetta v. Rozetta, 181 Ga. 494 (3) (182 S. E. 847). The demurrer raising the question of the suit by the wife against the defendant and the demurrer therein was speaking. "There is no merit in speaking demurrers which are based upon facts not alleged in the pleading demurred to, and which seek to raise matters which should be pleaded and proved as defenses to the action." Reid v. Caldwell, supra. "A demurrer based upon facts not alleged in the pleading which it attacks is a speaking demurrer. Such a demurrer presents no question for decision and should never be sustained." Miller v. Strauss, 38 Ga. App. 781, 782 (145 S. E. 501), and cit.
The petition was not subject to the grounds of demurrer urged thereto, and the court erred in rendering the judgment excepted to.
Judgment reversed. Townsend and Carlisle, JJ., concur.
Sullivan & Maner, contra.
Harry P. Anestos, for plaintiff in error.
Saturday May 23 04:55 EDT

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