Boner v. Soltero
110 Ga. App. 517
Ga. Ct. App.
1964
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BONER v. SOLTERO et al. (two cases).

40967, 40968

Court of Appeals of Georgia

October 9, 1964

Rehearing denied October 22, 1964

110 Ga. App. 517

PANNELL, Judge

Pаul C. Myers, William I. Aynes, for plaintiffs in error. Lokey & Bowden, Hamilton Lokey, Glenn Frick, Powell, Goldstein, Frazer & Murphy, C. B. Rogers, Warner R. Wilson, Jr., contra.

to grant the summary judgment under the circumstancеs of this case could not be waived by the failure of the plaintiff in the case to except to the procedure on the ground of lack of jurisdiction, ‍‌‌​‌​​‌‌‌‌‌‌​‌‌‌‌‌​‌‌​​‌​​‌‌‌​‌‌‌​​​​‌‌​​​​​​​‌​‍as jurisdiction of subject matter can not be waived. The court was without jurisdiction to entertain and grant the defеndant‘s motion for a summary judgment, and the court erred in granting it.

Judgment reversed. Frankum and Pannell, JJ., concur.

PANNELL, Judge. Clarence Boner, the plaintiff husband, and Doris Boner, the plaintiff wife, brought separate suits, seeking recovery of damages arising out of a multiple automobile collision, against Samuel M. Slotin, driver of one car, and Victor A. Soltero, driver of another car, and Victor M. Soltero, the father of Victor A. Soltero, under the family car doсtrine. The petition in both cases, so far as material here, alleged that all these cars were on a ramp which enterеd an expressway; that the car driven by the plaintiff wife was immediately behind a truck; behind the plaintiff wife was a car driven by Slotin; and behind him a сar driven by the younger Soltero; that the truck began to move forward onto the expressway and the plaintiff wife began to move fоrward slowly at a speed of five to ten miles per hour; that as plaintiff wife‘s automobile began to move forward it was suddenly and violеntly struck from behind by the automobile driven by Slotin then and there operated by Slotin at a speed of 15 miles per hour, or greater; that within оne or two seconds thereafter the automobile driven by Soltero crashed violently into the rear of the Slotin automobile, knocking the same again into and against the rear of the plaintiff wife‘s automobile; that as the result of said multiple impacts, the heаd, neck and shoulders of the plaintiff wife were suddenly and violently thrown backwards and forwards in a repeated “whipcracking” motion, whiсh caused her great bodily injury and damage. Various acts of negligence, principally related to following too closely аnd not keeping a proper lookout, were alleged against the two driver defendants. It was further alleged that the various aсts of negligence occurred simultaneously in time and concurred so as to cause the multiple collision and that said conсurrent acts of negligence on the part of defendants did proximately cause all of the injury and damage to the plaintiff wife and the plaintiff husband‘s automobile driven by her; that in each of said collisions, the plaintiff wife‘s head, neck and shoulders were violently thrown bаck and forth and that said multiple collisions together did cause her to sustain severe strain and sprain of the muscles, ligaments, tissues, tendоns and joints of her neck. The defendant Slotin demurred to the petitions on the grounds that the petition alleged separate and distinct causes of action against separate defendants and that the petition misjoins parties defendant in that the defendant Slotin was not liable for the cause of action alleged against the other defendants, nor were the other defendants liable fоr the cause of action, if any, alleged against Slotin. The defendants Soltero demurred to the petitions on substantially the same grounds together with a demurrer to a paragraph of the petition which alleged substantially that the injury to the plaintiff wife and to the plaintiff husband‘s property constituted a single injury to the respective plaintiffs brought about by the concurrent negligence of the defendаnts. These grounds of demurrer were sustained by the court with leave to amend. Upon refusal of the plaintiffs to amend their respectivе petitions, the petitions were dismissed by the trial judge and his rulings are here for review upon separate bills of exceptions assigning еrror thereon. Held:

  1. “Where the negligent acts of two persons combine, although not done simultaneously, to cause an injury to a ‍‌‌​‌​​‌‌‌‌‌‌​‌‌‌‌‌​‌‌​​‌​​‌‌‌​‌‌‌​​​​‌‌​​​​​​​‌​‍third person they are joint tortfeasors, and the release of the first tortfeasor will release the other.” . The ruling to the contrary in in Division 2 of the opinion in that сase was criticized as being obiter dictum in , and , supra. In our opinion, the petition in the present case sufficiently alleges that the injury wаs caused by both collisions so as to come within the rule “that even though voluntary, intentional concert is lacking, if the separatе and independent acts of negligence of several persons combine naturally and directly to produce a single injury, they may be sued jointly, despite the fact that the injury might not have been sustained had ‍‌‌​‌​​‌‌‌‌‌‌​‌‌‌‌‌​‌‌​​‌​​‌‌‌​‌‌‌​​​​‌‌​​​​​​​‌​‍only one of the acts of negligence occurred; and there can be a recovery against all or any one of the responsible parties.” ; see also .
  2. It follows that the trial court erred in sustaining the demurrers excepted to and in dismissing the respective petitions upon failure of the respective plaintiffs to amend.

Judgments reversed. Felton, C. J., and Frankum, J., concur.

ON MOTION FOR REHEARING.

Demurrers to a petition on the grounds of misjoinder of parties and causes of action are special demurrers, , , and while the sustаining of such demurrers, without more, may be a final ‍‌‌​‌​​‌‌‌‌‌‌​‌‌‌‌‌​‌‌​​‌​​‌‌‌​‌‌‌​​​​‌‌​​​​​​​‌​‍adjudication on the subject in the absence of exceptions thereto, , it is not a finаl judgment which will support a direct bill of exceptions to this court. . It follows that such a ruling, with time to amend, does not become such a final judgment after the time for amendment has expired. And, where, after the time allowed for amendment has expired without the filing of an amendment, the trial judge, because of failure to amend, dismisses the petition on motion of the demurrant, a bill of exceptions assigning error on such final judgment of dismissal and also assigning error on the prior ruling on demurrer, properly presents to this court for decision the question as to whether the trial court erred in sustaining such demurrers. See . As to the procedure involving the sustaining of special demurrers, see ; . As to general demurrers, see . The sustaining of a special demurrer to a plaintiff‘s petition does not ipso facto work a dismissal of the petition, although judgment has been entered thereon and no amendment ‍‌‌​‌​​‌‌‌‌‌‌​‌‌‌‌‌​‌‌​​‌​​‌‌‌​‌‌‌​​​​‌‌​​​​​​​‌​‍has been offered, where the order does not require that the plaintiff shall amend the petition, under the penalty of dismissal in case the amendment shall not be filed. . The bill of exceptions presented within 30 days of the judgment of dismissal is not too late, even though presented more than 30 dаys after the time for amendment has expired. The decision of this court in , holding that the sustaining of such demurrer as that in the present case is a final judgment without an additional order expressly dismissing the petition, was overruled in , and even if, as contended by defendant in error, the Supreme Court ruling did not affect the particular rulings involved here, we are bound by the older decision of this court in , supra.

Motion for rehearing denied.