Reeves v. McHan , 78 Ga. App. 305 ( 1948 )

1. The petition stated a cause of action against the defendant who demurred, and the court erred in sustaining a general demurrer and in dismissing the petition as to him.

2. The special demurrer to the petition on the grounds that it was multifarious and that there was a misjoinder of parties and causes of action should have been sustained.

DECIDED NOVEMBER 13, 1948. REHEARING DENIED DECEMBER 15, 1948. Floyd L. Reeves sued Petroleum Carrier Corporation, a non-resident carrier for hire, Emmett C. Stanton, its agent and driver of its tractor-trailer truck, American Fidelity and Casualty Company, its insurer, and R. C. McHan, for damages to the plaintiff's automobile. It was alleged: that the plaintiff's car was in the possession of his son, who was driving northwesterly along the Stone Mountain-Redan road, about three miles southeasterly from Stone Mountain, about 8 p. m., December 21, 1945; that on the northwesterly side of said highway there was a petroleum bulk plant owned and operated by R. C. McHan; that as the plaintiff's son was driving along said highway approaching the bulk plant of the defendant McHan he was confronted with the bright, glaring headlights of an automobile apparently approaching from the opposite direction, but parked just off the paved highway on the shoulder on the northwesterly side thereof between the paved portion of the highway and the bulk plant; that said parked automobile was the property of the defendant McHan, and had been left parked as aforesaid with the glaring headlights burning thereon; that Petroleum Carrier Corporation, through its agent and servant Stanton, was at said time and place operating a large petroleum carrier tractor-trailer without any lights thereon, and had pulled the same out of the bulk station of McHan into the highway, completely blocking the right side thereof, in the direction the plaintiff's son was driving, at a point opposite the bulk plant on the northeasterly side thereof; that the trailor-tracter was a dirty aluminum color and could not be seen behind the glare of the headlights on the McHan automobile; that the tractor-trailer was sitting on said highway without any lights thereon, and the driver thereof put out no flares to warn the traveling public on said highway as required by law; that just as the plaintiff's automobile, driven by his son, passed through the glare of the lights on the McHan car, the tractor-trailer, which was blocking said highway as aforesaid, loomed up in front of the plaintiff's son and he was unable to avoid running into the same, causing the damages to the plaintiff's automobile for which he sued.

The negligence charged, in the petition as amended, to McHan, the only defendant with whom we are now concerned, was substantially as follows: (a) in failing to have his said automobile provided with front lamps so as to prevent dangerously glaring or dazzling rays from the lamps in the eyes of approaching drivers, as required by the Code, § 68-302; (b) in leaving his automobile parked at night along the side of the highway with bright lights thereon dangerously glaring up the highway in the direction from which the plaintiff's son was approaching and directly in his eyes; (c) in failing to dim the lights on his automobile as the plaintiff's son approached the point where said car was parked at the edge of the paved highway; and (d) in leaving his said automobile parked along said highway as aforesaid with the beams from the headlights thereon creating a blinding glare, which interfered with the vision of the driver of the plaintiff's automobile, while approaching within 500 feet of said parked automobile, in violation of law. The negligence charged in paragraphs (a) and (d) was described as negligence per se.

McHan demurred to the petition generally and specially. The pertinent grounds of special demurrer were that the petition was multifarious as to parties and causes of action, and that there was a misjoinder of parties because the action in one count sought to recover damages against McHan on an alleged tort liability and also to recover damages against American Fidelity and Casualty Company on a contract liability, and that the plaintiff could not join a tort and contract liability against separate and distinct defendants in the same suit. The court sustained the general demurrer and dismissed the case as to McHan, but overruled the special demurrers. The plaintiff excepted in a direct bill of exceptions to the sustaining of the general demurrer, and the defendant McHan excepted pendente lite and in a cross-bill of exceptions to the overruling of his special demurrers on the grounds of multifariousness and misjoinder as to parties and causes of action. 1. Under the rulings in Fender v. Drost,62 Ga. App. 345 (7 S.E.2d 800), Harwell v. Blue's Truck LineInc., 187 Ga. 78 (199 S.E. 739), and Sprayberry v. Snow,190 Ga. 723 (10 S.E.2d 179), we think that the petition stated a cause of action against McHan. The defendant cites the case of Buchanan v. Ellis, 39 Ga. App. 840 (149 S.E. 100), as holding otherwise. That case was distinguished in Fender v.Drost, supra, for the reasons therein stated. The cases ofFraser v. Hunter, 42 Ga. App. 329 (156 S.E. 268), andState Highway Department v. Stephens, 46 Ga. App. 359 (167 S.E. 788) are also easily distinguished on their facts. Under the plaintiff's allegations, our view is that Petroleum Carrier Corporation and McHan were joint tort-feasors. "Persons guilty of separate acts of negligence which jointly and concurrently co-operate in causing an injury, are joint tort-feasors and may be sued as such. Akin v. Brantley, 26 Ga. App. 326 (106 S.E. 214); Mashburn v. Dannenberg Co., 117 Ga. 567 (44 S.E. 97). Plaintiff may sue one or all of such joint tort-feasors; and where she sues all, she may dismiss as to one defendant without affecting her rights as to the other defendant. Wall v. Wall,176 Ga. 757, 759 et seq. (168 S.E. 893)." City of Atlanta v.Harris, 52 Ga. App. 56 (182 S.E. 202). The fact that some of the negligence charged to McHan was classified as negligence per se, and other negligence charged to him was not so designated, would not invalidate the petition or subject it to demurrer. "The plaintiff may rely upon an act or omission as constituting negligence as a matter of fact under the circumstances, or upon the violation of a statute as amounting to negligence per se or as a matter of law. Furthermore, the facts may be so pleaded as to show negligence of both classes in the same action." Donaldson v. Great Atlanticc. Tea Co., 186 Ga. 870, 873 (199 S.E. 213, 128 A.L.R. 456).

2. The special demurrer of McHan on the grounds that the petition was multifarious and that there was a misjoinder of parties and causes of action should have been sustained. The settled law of this State with reference to the joinder of actions is that an action arising ex delicto may not be joined in the same suit with a claim arising ex contractu. Code, § 3-113 and annotations. The plaintiff relies on the exception to the general rule contained in the statute permitting the joining in one suit of the motor carrier and its surety, or the motor carrier and the insurance carrier, as the case may be. Code (Ann. Supp.), § 68-612. That statute as originally enacted in 1931 did not permit the joining in one suit of the motor carrier and its surety or insurer, and the amending act of 1937 now relied on by the plaintiff merely added two sentences to the original act as follows: "It shall be permissible under this chapter for any person having a cause of action arising hereunder in tort or contract, to join in the same suit the motor carrier and its surety, in the event a bond is given. If a policy of indemnity insurance is given in lieu of a bond, it shall be permissible to join the motor carrier and the insurance carrier in the same action whether arising in tort or contract." Prior to the amendment referred to it was held that the statute was in derogation of the common law and must be strictly construed. That holding was made in a case in which the plaintiff sued the motor carrier and its insurer in the same action. In holding that a demurrer to the petition should have been sustained, on the ground that there was a misjoinder of causes of action and a misjoinder of parties defendant, the court said: "In the absence of express provisions to that effect in the statute, it will not be construed to change the general and settled law of this State with reference to the joinder of actions." Russell v.Burroughs, 183 Ga. 361 (188 S.E. 451). Certainly the amendment to the original statute must also be strictly construed, and it does not expressly or otherwise provide for the joining in one suit of an action ex contractu against an insurance company and an action in tort against a third person in no way connected with the insurance company. We are aware of the holding of this court in Tarrant v. Davis, 62 Ga. App. 880 (10 S.E.2d 636), that the driver of the truck of the motor carrier may be joined as a defendant in an action against the principal and his surety for damages from injuries arising by reason of the negligence of such driver. That decision is based on the theory of principal and agent, and on the theory that the driver was in privity with the motor carrier. Of course, those conditions do not apply in the instant case.

It is our conclusion that the court erred in sustaining the general demurrer of McHan to the petition of the plaintiff, and in dismissing the action on general demurrer as to him. We think also that the court erred in not sustaining the first and second grounds of the special demurrer which pointed out the multifariousness and misjoinder of parties and causes of action.

Judgment reversed on the main bill and on the cross-bill ofexceptions. Felton, J., concurs. Sutton, C. J., concursdubitante.