Moore brought suit against Bryan, Byck, and the Byck Electric Company, to recover damages on account of injuries alleged to have been the result of the joint and concurrent negligence of Bryan and Byck, the negligence of Byck being chargeable to the corporate defendant. The plaintiff made substantially the following allegations in his petition: He was riding as a guest in a Plymouth automobile driven by Bryan and proceeding along the highway at an unlawful rate of speed at the time in question. A Chevrolet automobile belonging to the Byck Electric Company and driven by Byck, the authorized agent of said company, was approaching from the opposite direction, it also was being driven at the time at an unlawful rate of speed. This automobile overtook a “Model T Ford” automobile driven by one Butts, traveling in the same direction, as the Chevrolet; and being unable to stop the Chevrolet, Byck suddenly turned the steering-wheel and swerved his car to the left and directly in front of the automobile in which the plaintiff was riding and which was approaching from the opposite direction, the Plymouth being on the left side of the road so far as the Chevrolet was concerned. Thereupon the Chevrolet and Plymouth cars collided, and the plaintiff was injured. The highway at this point was straight and free from obstruction. Both automobiles were being driven at the time at about 70 miles per hour. In paragraph 10 of the petition the plaintiff alleges that “Bryan was driving his said automobile, as aforesaid, on the right-hand side of the center of the highway, and that at the point of meeting the T. Ford automobile, above referred to, the defendant, Sylvan M. Byck, drove the Chevrolet automobile, as aforesaid, in and on to his left-hand side of the center of the said highway, directly in front of the automobile in which petitioner was riding, as aforesaid, thus causing the two automobiles to collide, almost head-on;” that the defendants are jointly and severally liable to the plaintiff, the collision being the result of the joint and concurrent negligence of Byck as agent of the Byck Electric Company, in the operation of the Chevrolet, while engaged in the business of said company, “and that while so engaged he did drive the said Chevrolet automobile on to the left-hand side of the center of said highway, and directly in front of the car driven by Cabaniss A.
The plaintiff offered an amendment to his petition, in which he alleged that Bryan was negligent in driving his Plymouth automobile on a dark night at such dangerous and excessive rate of speed, about 70 miles an hour, in violation of the State law, and in not seeing the approaching automobile driven by Byck, which was on the wrong side of the highway, in time to avoid the collision, which lie could have done by the exercise of ordinary care and diligence,
It is contended that the amendment was an attempt by the plaintiff to change the theory of his case, in that in the original petition he charged that the collision was caused by Byck driving head-on into the automobile of Bryan, and in the amendment he set up that the collision was caused by Bryan driving head-on into the automobile of Byck (see portion of amendment italicized). It is also contended that the amendment came too late; that is, after the petition had been dismissed on demurrer. Bryan moved to dismiss the bill of exceptions in so far as it assigns error on the disallowance of the amendment, “ since it appears that the demurrer to the plaintiff’s petition was acted on first, and the demurrer sustained and the plaintiff’s case actually dismissed thereafter, while on the same date, but nevertheless at a time when plaintiff’s case stood dismissed, without any order allowing the plaintiff the right to amend,” and therefore the plaintiff’s case had been dismissed on general demurrer, leaving the court without jurisdiction to pass on the amendment. Bryan contends that this court should “ dismiss the first portion of the plaintiff’s bill of exceptions wherein error is assigned on the order of the court disallowing the amendment, which was tendered after the case had
1. The contention of Bryan, that the amendment Avas tendered after the case had been dismissed on general demurrer, the order of dismissal not providing for any amendment, that therefore the court had no jurisdiction even to enter an order disallowing such amendment, and that the bill of exceptions should be dismissed in so far as it attempts to assign error on the judgment disallowing the. amendment, is without merit. The motion is denied. It appears from the bill of exceptions that this amendment was tendered on May 2, 1935, that the judge took under advisement the allowance thereof at the same time that he took under advisement the question of the demurrers to the petition, and that on May 3, 1935, he passed an order sustaining the demurrer of the resident defendant on the ground that no cause of action was alleged against him, which automatically worked a dismissal of the case as to the other defendants for lack of jurisdiction, at the same time passing his order disallowing the proffered amendment. It therefore appears that the court had jurisdiction of the amendment at the time it was tendered; and as it set up facts germane to the original cause of action and did not seek to set up a new
The contention of the defendants that the original petition did not set up a cause of action against Bryan, and therefore that there was nothing to amend by, and that the court properly disallowed the proffered amendment for this reason, is not well taken. “ ‘A petition showing a plaintiff and a defendant, and setting out sufficient to indicate and specify some particular fact or^ transaction as a cause of action is enough to amend by.’ Civil Code (1910), § 5682, codifying the decision in Ellison v. Ga. R. Co., 87 Ga. 691 (13 S. E. 809), which construed the clause in section 5681 permitting amendments ‘in matter of form or of substance, provided there is enough in the pleadings to amend by.’ The rules stated in the Ellison case are, that, where the amendment of a pleading is one as to form, there must be a ‘complete cause of action in substance;’ ‘but when the amendment needed is one of substance itself, “enough to amend by” does not mean the same as “enough to be good in substance without amendment.” On the contrary, failing to be good in substance is generally the reason why amendment of substance is needed.’ As to the subject-matter in the original pleading, there must be ‘facts enough to indicate and identify some particular cause of action as the one intended' to be declared upon, so as to enable the court to determine whether the facts proposed to be introduced by the amendment are part and parcel of the same cause.’ ‘The declaration must show what the design of the pleader was, and that his design was such that, if filled out and completed, a cause of action might appear. . . If enough is alleged to render it fairly and reasonably probable that the plaintiff claimed to have a cause of action of the kind.
The defendants contend further that the amendment was properly disallowed, because it sought to add a new and distinct cause of action, in violation of the provisions of the Code, § 81-1303. Amendments amplifying the allegations of a petition as to negligence, and even adding grounds of negligence, do not necessarily add a new and distinct cause of action, in violation of this section. See Venable v. Burton, 118 Ga. 156, 158 (45 S. E. 29); City of Columbus v. Anglin, 120 Ga. 785 (48 S. E. 318); Jenkins v. Lane, 154 Ga. 454 (115 S. E. 126). The amendment was germane to the original cause of action pleaded, and in our opinion it did not seek to add a new and distinct cause of action. See Walker v. Central Ry. Co., supra. This question necessitates a consideration of the meaning of the phrase “cause of action.”
The law as to amendments being very liberal (Mendel v. Miller, 134 Ga. 610, 68 S. E. 430), it follows that the amendment was germane to the original cause of action (Patrick v. Cobb, 122 Ga. 80, 49 S. E. 806), did not come too late, and did not seek to add a new and distinct cause of action. It should have been allowed. See Gabbett v. Atlanta, 137 Ga. 180 (73 S. E. 372). The petition did not show that the plaintiff was injured by reason of his failure to exercise ordinary care for his own safety; and therefore the principle stated in Kennemer v. W. & A. R., 42 Ga. App. 266 (3) (155 S. E. 771), is not applicable. In that case an amendment charging wilful and wanton negligence did not cure the fatal defect in the original petition that it was not the defendant’s negligence that caused the plaintiff’s injury. Of course if the allegations of a petition show that the injury was caused by the plaintiff’s neg ligenee or failure to exercise care for his own safety, an amendment adding to or amplifying the grounds of negligence charged against the defendant could not aid the petition. It follows that if the petition, together with this amendment, set up a cause of action against Bryan, the resident defendant, the judge erred in dismissing it on the ground that no cause of action was alleged against that defendant.
2. If the court erred in sustaining the demurrer of Bryan and dismissing the action as to him, which worked a dismissal of the petition as to the non-resident defendants, then the case should be reinstated as to all the defendants. “It is now well settled law in this State that where suit is brought against two defendants, one of whom resides in the county, the court has no jurisdiction of the non-resident defendant, unless the resident defendant • is liable in the action.” Peake v. Stovall, 50 Ga. App. 595, 597 (179 S. E. 287); Ross v. Battle, 117 Ga. 877, 880 (45 S. E. 252).
4. It is contended that the pleadings show that the plaintiff and Bryan were engaged in a joint enterprise for their employer, in that they were returning home in the automobile driven by Bryan after having together transacted business in Southeast Georgia for their mutual employer, Wiley Moore, of Atlanta, and therefore that the plaintiff was riding in the automobile of Bryan, not as his guest, but as a passenger; and consequently, if the plaintiff was injured by reason of the ordinary negligence of this defendant jointly with the negligence of the other defendants, then a recovery was authorized under the pleadings against all of the defendants, regardless of whether or not the petition as amended made a case of gross negligence against Bryan. Although a petition, may characterize the acts'of negligence as gross or as wilful and wanton, if the duty owing by the defendant to the plaintiff is to exercise ordinary care to avoid injuring him, and if the defendant is liable where by reason of his ordinary and simple negligence the plaintiff is injured, then the petition is good as against a general demurrer on the ground that no cause of action is alleged; — this on the theory that the greater includes the lesser. Western Union Tel. Co. v. Harris, 6 Ga. App. 260 (64 S. E. 1123; Standard Oil Co. v. Parrish, 40 Ga. App. 814 (151 S. E. 541); Blanchard v. Ogletree, 41 Ga. App. 4, 7, 8 (152 S. E. 116). However, under the allegations of the petition as amended, construing them most strongly against the plaintiff, as is proper on general demurrer, this court is of the opinion that the petition shows that the plaintiff was riding in the automobile of Bryan gratuitously as a guest, and did not occupy the status of a passenger in the true sense of that term. In the petition the plaintiff alleged that Bryan was on his way from Sandersville to Atlanta, and that at the time Byck overtook the Ford automobile Bryan was driving a Plymouth automobile in which the plaintiff was riding. In paragraph 15 of the petition the plaintiff al
In the proffered amendment which the court disallowed, the plaintiff alleged that he was riding in the automobile with Bryan. While the plaintiff designates himself as a passenger in Bryan’s ear, we do not think the petition can well be construed as clearly setting up that he occupied such status. A passenger is “one who travels in some kind of public conveyances by virtue of a contract, express or implied, with the carrier, as the payment of fare, or that which is accepted as equivalent therefor.” 2 Hutchinson on Carriers (3d ed.), § 997. There are two main elements in the legal definition of a passenger: first, an undertaking on the part of the person to travel in the conveyance provided by the carrier; and second, an acceptance by the carrier of the person as a passenger. Every one, not an employee of the carrier, riding in such conveyance under a contract express or implied, is ordinarily deemed a passenger. The term “passenger,” as used in connection with whether a person riding in an automobile- is a passenger or an invited guest, in fixing the degree of diligence required to be exercised to avoid injuring him, seems to mean that one is such a passenger when he is being carried for hire. Wellman v. Mead, 93 Vt. 322 (107 Atl. 396). A leading case on the duty owed by the driver of an automobile to one riding therein as a guest, after an exhaustive review of the law and decisions of this country and England on the subject, ends with this holding: “Justice requires that one who undertakes to perform a duty gratuitously would not be under the same measure of obligation as one who enters upon the sqme undertaking for pay. There is an inherent difficulty in stating the difference between the meas
5. It being the opinion of this court that the plaintiff made out a case for submission to the jury on the question of gross negligence, it follows that the court erred in dismissing the petition on general demurrer.
Judgment reversed.