Martin v. McAfee & Co.

31 Ga. App. 690 | Ga. Ct. App. | 1924

Bull, J.

(After stating the foregoing facts.) “Where a bill of exceptions which can be identified as excepting to a specific judgment is served upon counsel of record in the case, such service shall be held to bind all parties whom said counsel represented in the trial court. Where counsel acknowledges service upon a bill of exceptions, such acknowledgment shall be held to be a complete waiver of all defects in the service which the counsel signing it is legally competent to waive, whether such signing is done before or after the signing of the writ of error, unless counsel in the entry of acknowledgment distinctly and specifically states that it is not to be construed as waiving some particular defect then pointed out by him. If such acknowledgment of service is properly entitled in the cause, it need not be physically attached to the bill of exceptions.” Park’s Annotated Code (1914), § 6164 (a); Ga. L. 1911, p. 149. Where an acknowledgment of service has been procured as provided in the section quoted, the bill of exceptions may be amended in the reviewing court by making any person a party defendant in error to the case who is bound by such service, although such person may not have been named in the bill of exceptions. Park’s Annotated Code (1914), § 6164 (b); Ga. L. 1911, p. 149.

In this case the attorney who represented the partnership in the court below acknowledged service of the bill of exceptions generally,' without reservation or exception. The partnership being thus bound by this acknowledgment of service, the motion of the plaintiff in error to make it a party defendant in error is one that may be properly entertained, and is granted. Consistently the motion to dismiss is denied. See Edwards v. Wall, 153 Ga. 776 (5) (113 S. E. 190); Thompson v. Simmons, 139 Ga. 845 (2) (78 S. E. 419); Coleman v. Board of Education, 136 Ga. 844 (3) (73 S. E. 159); Hayes v. Hayes, 137 Ga. 363 (73 S. E. 659); Toole v. Geer, 12 Ga. App. 409 (77 S. E. 368); Parrish v. Adams, 22 Ga. App. 170 (95 S. E. 749); Cleland v. Bennett, 24 Ga. App. 683 (102 S. E. 39).

Without such service upon the partnership, however, it would seem that the defect as to parties defendant in error could not be cured by amendment unless the partnership should “waive service and agree that said case may be heard.” Civil Code (1910), § 6160 (3); Marietta Paper Mfg. Co. v. Fox, 64 Ga. 450; Craig v. Webb, 70 Ga. 188 (3); Sears v. Jeffords, 119 Ga. 821, 823 (47 S. E. 186); Bullard v. Wynn, 134 Ga. 636 (68 S. E. 439); Carter v. Davidson, 138 Ga. 317 (75 S. E. 155). As to making parties plaintiff in error by amendment see Crossley v. Leslie, 130 Ga. 783 (3) (61 S. E. 851, 14 Ann. Cas. 703).

While the want of a necessary party defendant in error in the bill of exceptions is a matter affecting jurisdiction (Teasley v. Cordell, 153 Ga. 397 (2), 112 S. E. 287), the omission to give the court jurisdiction in the pleadings is amendable in an otherwise proper case where the facts necessary to jurisdiction actually existed at the time the proceeding was brought. Civil Code (1910), § 5691. Compare Sloan v. Smith, 30 Ga. App. 591 (2) (116 S. E. 200). The ruling made in this decision is without reference to the difference between counsel as to whether the motion to dismiss the* bill of exceptions was served upon the attorneys for the plaintiff in error.

2. The petition undoubtedly alleges negligence on the part of the defendant’s servant while acting within the scope of his employment. It further alleges that the plaintiff’s injuries were due thereto. In a case of this character it is not necessary for the plaintiff to negative by affirmative allegations any negligence on his part. This is a matter of defense, and in such a case the petition in this respect will be good unless the facts pleaded affirmatively show that the injuries were the result of the plaintiff’s own negligence or want of ordinary care. Hardwick v. Figgers, 26 Ga. App. 494 (2) (106 S. E. 738); Atlantic Coast Line R. Co. v. Wildman, 29 Ga. App. 745 (4) (116 S. E. 858); Fisher Motor Car Co. v. Seymour, 9 Ga. App. 465 (71 S. E. 764). Even assuming that the petition may disclose some negligence on the part of the plaintiff, it does not appear th'erefrom, as a matter of law, that this and not the negligence of the defendant was the cause of his injury.

Questions as to diligence and negligence, including contributory negligence, being questions peculiarly for the jury, the court will decline to solve them on demurrer, except in plain and indisputable cases; and in the exercise of this function the question as to what constitutes the proximate cause of an injury complained of may be directly involved as one of the essential elements and disputed issues in the ascertainment of what negligence, as well as whose negligence, the injury is properly attributable to. 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. Larkin v. Andrews, 27 Ga. App. 685 (109 S. E. 518); Columbus Railroad Co. v. Moore, 29 Ga. App. 79 (113 S. E. 820); Jones v. Tanner, 26 Ga. App. 140 (105 S. E. 705). It was held by this court in Nixon v. Williams, 25 Ga. App. 594 (2), (3) (103 S. E. 880), that “where the plaintiff was driving a horse attached to a buggy, along a public highway, and the horse became frightened by the operation of an approaching automobile of the defendant and fell into a ditch and was injured, the act of a third person in the buggy with the plaintiff, in grabbing the lines and attempting to control the frightened horse, which pulled the horse into the ditch where he was injured, was not necessarily the legal cause of the injury;” and that “whether the operation of the defendant’s automobile in frightening the horse, or the grabbing of the lines by the third person, was the legal cause of the injury to the horse, and whether or not the defendant was negligent, were issues for the jury.” The rulings in Schofield v. Hatfield, 25 Ga. App. 513 (103 S. E. 732), and Moody v. DuBois, 29 Ga. App. 652 (116 S. E. 219), were similar. In like manner we hold in the case at bar that the questions of negligence or diligence, and of contributory negligence and proximate cause, as presented by the petition, were questions to be answered by the jury. It was therefore error to sustain the general demurrer. See Dabbs v. Rome Railway & Light Co., 8 Ga. App. 350 (1), (3) (69 S. E. 38); Atlantic Coast Line R. Co. v. Daniels, 8 Ga. App. 775 (70 S. E. 203).

3. Where the judgment of the trial court sustaining a demurrer which contains both general and special grounds is expressly limited to the general grounds, or from its language may be so construed, the special grounds will not be considered upon review, but will be left to subsequent determination by the trial court. Willingham v. Glover, 28 Ga. App. 394 (111 S. E. 206). The rule is otherwise, however, where a general order of dismissal is rendered, in which it does not appear that the general grounds only were passed upon. In that case the judgment will be treated as sustaining the entire demurrer upon all its grounds, and the special as well as the general grounds must be considered upon review, if the petition is not subject to the latter. Willingham v. Glover, supra; Price v. Ketchum, 29 Ga. App. 179, 182 (115 S. E. 32). The trial judge in this case having passed only upon the general grounds of the demurrer, the special grounds will be left for his future determination.

Judgment reversed.

Jenhins, P. J., and Stephens, J., concur.