167 Ga. 630 | Ga. | 1929
L. L. Smith filed suit in the municipal court of Atlanta against G. C. Wood, on a claim for damage to property arising out of an automobile collision. Ten days later Wood filed a suit against Smith in Eulton superior court, seeking in one count to recover for both personal injury and property damage on claims which arose out of the same collision, and praying that Smith’s suit in the municipal court for property damage be restrained and enjoined, and that Smith be required to set up his claim for property damage as a counter-claim to Wood’s suit in the superior court. Upon this petition the court granted a temporary restraining order, and when the case came on for a hearing Smith filed a demurrer to Wood’s petition on two grounds: (1)
The court did not err in overruling the general demurrer. The claim for damages of Wood and the claim of Smith against Wood for damages to property, for the recovery of which suit was filed in the municipal court of Atlanta, arose out of the same collision. The general demurrer to the petition is based upon the theory that Wood could maintain a suit for injury to his automobile, in the municipal court, and maintain a suit at law in the superior court for the personal injuries alleged to have been received in the collision. This contention of the demurrant finds support in the decision of the case of Endsley v. Georgia Railway &c. Co., 37 Ga. App. 439 (140 S. E. 386), where it was said: “Where one sustains an injury to his person and also damage to his property from the same act or acts of negligence of another, two distinct causes of action arise in favor of the person so aggrieved, and a recovery for the damage to his property is not a bar to a subsequent action for the injury to his person.” That case was brought to this court for review by. writ of certiorari, and this court stated a different doctrine, holding, that, “Where injuries to the person and the physical property of an injured party grow out of a single wrongful or negligent act, the tort to the person and property constitutes a single cause of action which should be presented for determination in a single suit.” 167 Ga. 439 (145 S. E. 851). Under that
The facts in the case of Redwine v. Carr, 164 Ga. 592 (139 S. E. 1), were substantially as follows: On September 24, 1926, Bed-wine filed a petition in the superior court against Carr & Company, a corporation, alleging as follows: On April 27, 1926, plaintiff instituted his action against the defendant in the superior court for the sum of $2,000; the action was based upon plaintiff’s claim for damages to his automobile, for the loss of services of his wife by reason of personal injuries, and for doctor’s bills; a copy of the suit was attached to the equitable petition. On April 29, 1926, the defendant instituted a suit in the municipal court of Atlanta against the plaintiff, for the sum of $318.88. Both the claim of plaintiff and that of the defendant grew out of a collision between a truck of the defendant and an automobile of the plaintiff. Plaintiff’s suit was filed first, and was pending. He could not set up in the municipal court his entire claim against the defendant for the loss of services of his wife; and he was informed and believed that the defendant, realizing this fact, instituted the suit in the municipal court in order to have the same adjudicated prior to the trial of plaintiff’s claim, and in order to prevent plaintiff from recovering his claim for the loss of services of his wife. It was alleged that full and complete relief could be afforded to both parties in the action pending in the superior court, which would end the entire controversy between plaintiff and defendant, and the demands growing out of the same transaction. Plaintiff prayed that defendant be required to come into the superior court and fully answer, setting up its entire claim against the plaintiff; that defendant be
"While the court should also have overruled the second ground of the demurrer, raising the point that petitioner could not join his claim for personal injuries to himself in the same count with a claim for property damage to his automobile, this was not excepted to by the plaintiff in the case, and it afforded the defendant no ground for exception.
Judgment affirmed.