Crane v. Doolittle

Hall, Judge. The plaintiff sought damages against the owner and driver of a taxicab in which she was riding and the owner and driver of another automobile which collided with the taxi, for injuries allegedly resulting from the concurring negligence of all defendants. The owner and driver of the taxi filed general demurrers, motions for nonsuit and for a directed verdict, and an objection to the charge of the court prior to the jury returning its verdict, all of which were overruled and denied. After verdict and judgment for the plaintiff against all four defendants, the owner and driver of the taxi filed a notice of appeal and enumerates the above rulings as error. 1. One of the oldest principles in the law of pleading is that a general allegation of negligence is good as against a general demurrer. “As against general demurrer only, a petition is not subject to dismissal because the specific acts of negligence are not set out.” Higdon v. Georgia Winn-Dixie, Inc., 112 Ga. App. 500, 505 (145 SE2d 808). Furthermore, “It is only where it clearly appears from the petition that the negligence charged against the defendant was not the proximate and effective cause of the injury that the court may upon general demurrer, as a matter of law, so determine.” Sarno v. Hoffman, 110 Ga. App. 164, 167 (138 SE2d — 310 — 96). Applying these principles with respect to the allegations that these defendants failed to control the movements and speed of their vehicle so as to avoid the collision, we are of the opinion that the trial court did not err in overruling their general demurrers. Brown v. Johnson, 111 Ga. App. 376 (141 SE2d 791); Young v. Tate, 112 Ga. App. 603, 606 (145 SE2d 747); Ware v. Alston, 112 Ga. App. 627, 630 (145 SE2d 721). Felton, C. J., Bell, P. J., Jordan, Eber — 311 — hardt and Quillian, JJ., concur. Frankum, P. J., concurs in the judgment. Pannell and Deen, JJ., dissent. — 310 — 2. Appellants’ enumerations of error with respect to their motions for nonsuit and for directed verdict and their contention that there was no evidence that their negligence was the proximate cause of any injuries to the plaintiff are without merit for the reason that, while there was evidence to the contrary, the driver of the other car testified that he was stopped in his own lane of traffic when the taxi came over and hit him. 3. Appellants enumerate as error the following charge of the court: “If you should determine that the defendant Crane did not commit at least one of the specifications of negligence charged against him and defendant Veteran’s Cab Co., Inc., or if you should determine that he committed one or more of the actions specified in those charges of negligence, but that nevertheless such actions as you find that he committed did not constitute slight negligence as a matter of fact, or negligence as a matter of law, on his part, then in that event, you could not find a verdict in favor of the defendants Veteran’s Cab Company, Inc. and Crane, and you would be under a duty to render a verdict in their behalf.” Upon the conclusion of the charge the trial court asked if there were any exceptions. Appellants’ attorney informed the court, and the plaintiff’s attorney concurred, that the abufre charge was mixed up in the use of the word “not.” The court replied “All right, I am not going to try to pick that out and try to correct it. You may record your exception.” “The court had an opportunity to clarify the charge to the jury and it is our understanding that this was the purpose of the new appellate practice law which requires an opportunity for the trial court to correct its errors in charges before cases are considered by juries. The court erred in not correcting the charge.” State Hwy. Dept. v. Handley, 114 Ga. App. 124, 125 (150 SE2d 316). Judgment reversed. Argued November 7, 1966 Decided February 27, 1967. Erwin, Birchmore & Epting, Eugene A. E'pting, for appellants. Grady C. Pittard, Jr., Joseph J. Gaines, for appellees.