50 S.E.2d 787 | Ga. Ct. App. | 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.
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 *307
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,
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,
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.