Lead Opinion

1. A petition alleging that the negligence of two defendants, in operating an automobile over a public highway in a reckless, dangerous and unlawful manner, concurred and joined with the negligence of another defendant, who had negligently stopped or parked her car on and partly across the highway at an intersection under the crest of a hill at night, *Page 222 thereby proximately causing or contributing to the accident wherein the plaintiff was injured, set out a cause of action against the two defendants as against their general demurrers, although the accident might not have occurred except for the negligence of the other defendant in stopping or parking her car under the circumstances alleged.

(a) Under the allegations of the petition, whether the two defendants were guilty of negligence in any of the particulars charged, and, if so, whether the concurrent acts of negligence of the other defendant and of the two defendants, or the separate acts of negligence of any one or more of the defendants, constituted the proximate cause of the plaintiff's injury, was an issue of fact for a jury.

2. The petition, alleging that the plaintiff had been injured by the concurring acts of negligence of three defendants, whose negligence it was alleged joined directly to produce the single injury complained of, was not subject to special demurrers by two of the defendants that there was a misjoinder of parties defendant and of causes of action.

3. The petition set out a cause of action and was not subject to the demurrers urged against it, and the court did not err in overruling the demurrers thereto.

DECIDED MAY 9, 1947. REHEARING DENIED MAY 29, 1947. Miss Mary Amos sued Dan Plunket Shepherd, W. C. Shepherd and Miss Helen Jackson Verner in the Superior Court of DeKalb County, seeking to recover damages in the sum of $50,000 for personal injuries sustained as the result of the negligence of the defendants. The allegations of her petition were substantially as follows: on March 6, 1946, at about 7:45 o'clock, p. m., plaintiff was riding as a guest in an automobile operated by Willie Jackson Williams in an easterly direction over U.S. Highway No. 78 in Walton County; at a point on said highway approximately 4 miles west of Monroe, the old Alcovy Church road intersects with the highway and runs therefrom in a southerly direction; a short distance west of this intersection, the highway passes over a hill and the approach from that point to the intersection is downgrade; at this intersection, the defendant, Helen Jackson Verner, had stopped her automobile on the highway, her car being headed into the old Alcovy Church road and was across and completely blocked the southern side of the highway; although it was after dark, there were no lights on said automobile or on the highway in the vicinity of the automobile which were visible to traffic approaching from the west; as the automobile in which plaintiff was riding approached the intersection along the right hand side of *Page 223 the highway, the lights of the automobile were on and were functioning properly, but due to the hill over which the automobile passed a short distance to the west of the intersection and said downgrade of the highway, the headlights did not illuminate said parked automobile until the car in which the plaintiff was riding had passed over the crest of the hill and started down the grade; as the parked car came into view, the driver of the car in which plaintiff was riding applied the brakes and turned the car to the left in an effort to avoid striking the parked car, nevertheless, the automobile in which plaintiff was riding ran into and struck the parked automobile near the rear end with considerable force and continued down the highway some 25 or 30 feet, where it came to a stop, turned across the highway; immediately thereafter and before the plaintiff and the driver of said automobile had time to alight therefrom, the defendant, Dan Plunket Shepherd, who was driving a Cadillac automobile in an easterly direction along said highway at a reckless and dangerous rate of speed, ran into and struck said automobile with great force and violence, knocking it forty feet or more down the highway and turning it completely around and demolishing it; at said time and place, the defendant, Dan Plunket Shepherd, was driving said automobile at a reckless, dangerous and unlawful rate of speed of between 65 and 70 miles per hour and he did not have said automobile under immediate control; the impact of the collision killed the driver of the car in which the plaintiff was riding and caused the plaintiff to sustain certain specified personal injuries, which were alleged to be painful, severe, serious and permanent; plaintiff was forced to incur certain specified expenses for hospitalization, doctors' services, medicines and drugs; she lost $60 from her pocketbook at the time of the occurrence; that she was earning $175 per month at the time she was injured, and that she had been totally incapacitated to the time of the filing of the suit and her earning capacity will be reduced 50% for the remainder of her life; that all of plaintiff's injuries were the direct and proximate result of the joint and contributing negligence of the defendants; that the automobile operated by Dan Plunket Shepherd was the property of the defendant, W. C. Shepherd, his father and with whom he lived, and was furnished by W. C. Shepherd as a family car for the use, pleasure, comfort and convenience of the members of his *Page 224 family, including Dan Plunket Shepherd, and in addition thereto, the said Dan Plunket Shepherd was on business for his father, W. C. Shepherd, at said time and place and acting as his agent within the scope of his employment; that the defendants were negligent as follows: the defendant, Helen Jackson Verner, was negligent (a) in stopping her automobile on and across the public highway; (b) in stopping her car so as to block the southern side of the highway; (c) in failing to place her automobile, while not in motion, as near the right hand side of the highway as practicable; (d) in stopping her automobile within 8 feet of the center line of the highway, in violation of law; (e) in parking her automobile within 8 feet of the center line of the highway, in violation of law; (f) in failing to have a light or lights on said stopped or parked vehicle which could be readily seen by traffic approaching along said highway; (g) in failing to give the driver of the automobile in which plaintiff was riding any warning by light or other signal of the fact that said automobile was stopped or parked on and across said highway; (h) in failing to move her automobile off the highway before the car in which plaintiff was riding reached the point where the defendant's automobile had stopped; that the defendants, Dan Plunket Shepherd and W. C. Shepherd, were negligent (a) in operating said Cadillac automobile over said highway at a rate of speed greater than was reasonable and safe, having due regard for the width, grade, character, traffic and common use of said highway; (b) in operating said automobile over said highway at a greater rate of speed than 55 miles per hour in violation of law; (c) in failing to reduce the speed of said automobile as it approached the intersection of the old Alcovy road with said highway; (d) in failing to have said automobile under immediate control at said time and place; (e) in failing to bring said automobile to a stop before striking the automobile in which plaintiff was riding; (f) in failing to drive around the automobile in which plaintiff was riding; and (g) in running into and striking the automobile in which the plaintiff was riding.

To the petition of the plaintiff, the defendants, Dan Plunket Shepherd and W. C. Shepherd, filed general demurrers and 12 grounds of special demurrer; however, only the general demurrers and the grounds of special demurrer attacking the petition on the ground that there was a misjoinder of causes of action and of *Page 225 parties are pertinent to this appeal. The trial judge overruled the demurrers, and the defendants, Dan Plunket Shepherd and W. C. Shepherd, excepted. 1. The defendants, Dan Plunket Shepherd and W. C. Shepherd, contend that the petition fails to set out a cause of action against them and that the court erred in overruling their general demurrers because it appears from the allegations of the petition that the proximate cause of the plaintiff's injuries was not the alleged acts of negligence of these defendants but was the alleged acts of negligence of another person and that the same result would have followed in any event and irrespective of the alleged negligence charged against them. Counsel for these defendants state in their brief that they do not challenge the inherent sufficiency of the allegations of negligence charged against these defendants nor deny that such allegations standing alone might have set forth a cause of action, but they contend that under the allegations of the petition the proximate cause of the plaintiff's injuries was the incline in the highway which tilted the headlights of the approaching automobile and the negligence of the defendant, Helen Jackson Verner, in stopping her automobile in the darkness behind the hill so that it was impossible for the defendants to avoid the collision. The court did not err in overruling the general demurrers of these two defendants. It was held in Callahan v. Cofield, 61 Ga. App. 780,783 (7 S.E.2d 592): "It was for the jury to determine whether the defendants were guilty of negligence in any of the particulars charged, and, if so, whether the concurrent negligence of all the defendants, or the separate acts of either, constituted the proximate cause or causes of the injury. Each case must depend for solution on its own particular facts. It is a wellsettled principle of law that where two concurrent causes operate directly in bringing about an injury there can be a recovery against either or both of the responsible persons. The fact alone that the injury and damage to the plaintiff would not have been sustained had only one of the persons been guilty of the negligent acts charged, will not of itself operate to define and limit the negligent *Page 226 acts of the other person as constituting the proximate cause. If the negligent acts of both persons contribute directly and concurrently in bringing about the injury, such acts together will constitute the proximate cause or causes. What constitutes the proximate cause of an injury 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, and except in plain and indisputable cases this is for determination by a jury under proper instructions by the court." Under the allegations of the petition in the present case, a jury could find that the alleged negligence of Dan Plunket Shepherd and W. C. Shepherd concurred and joined with the negligence of Helen Jackson Verner, who had negligently stopped or parked her car in the highway at the intersection under the circumstances alleged, thereby proximately contributing to the accident wherein the plaintiff was injured and damaged as set out in the petition. Whether the defendants, Dan Plunket Shepherd and W. C. Shepherd, were guilty of negligence in any of the particulars charged, and, if so, whether the concurrent acts of negligence of the defendant, Helen Jackson Verner, and of the defendants, Dan Plunket Shepherd and W. C. Shepherd, or the separate acts of any one or more of them, constituted the proximate cause of the plaintiff's injury was an issue of fact for a jury. Georgia Railway Power Co. v.Ryan, 24 Ga. App. 288 (100 S.E. 713). Also, see Bonner v.Standard Oil Company, 22 Ga. App. 532, 536 (96 S.E. 573), and citations; McGinnis v. Shaw, 46 Ga. App. 248 (167 S.E. 533).

The cases cited and relied on by the plaintiffs in error are distinguishable on their facts from the present case and do not authorize or require a different ruling in this case from the one here made. Under the allegations of the petition, we can not say as a matter of law that the plaintiff would have sustained the injuries sued for irrespective of the negligence charged against the defendants, Dan Plunket Shepherd and W. C. Shepherd, as is contended by counsel for these two defendants, and that their negligence did not proximately contribute to the accident, but this is an issue for the jury, and the trial judge properly overruled the general demurrers of these defendants to the plaintiff's petition.

2. The plaintiffs in error contend in their demurrers that there *Page 227 was a misjoinder of parties and of causes of action in that the plaintiff was seeking to recover damages in a single count for injuries received by her in two separate collisions allegedly caused as the proximate result of separate and distinct acts of negligence of two parties. There is no merit in these grounds of demurrer. While the petition originally alleged that the plaintiff was slightly injured when the car in which she was riding struck the automobile stopped or parked by the defendant, Helen Jackson Verner, on and across the highway, these allegations were stricken from the petition on demurrers filed by the defendants, Dan Plunket Shepherd and W. C. Shepherd. A proper construction of the plaintiff's petition after the special demurrers of these defendants were sustained is that the plaintiff seeks to recover damages only for the injuries received in the second collision, and that no recovery is sought for any injuries which may have been sustained in the first collision. It was alleged in the petition that the injury and damage sustained by the plaintiff in the second collision and for which a recovery was sought was sustained by the plaintiff as the proximate result of the concurring acts of negligence of all the defendants. "The petition, alleging that the plaintiffs had been injured by the concurring acts of negligence of two defendants, whose negligence it was alleged combined naturally and directly to produce the single injury complained of, was not subject to special demurrers on the grounds that there was a misjoinder of parties defendant, and that the petition was multifarious." City of Dalton v.Joyce, 70 Ga. App. 557 (2, 3) (29 S.E.2d 112). Also, seeScearce v. Gainesville, 33 Ga. App. 411 (126 S.E. 883), and citations; Longino v. Moore, 53 Ga. App. 674 (187 S.E. 203); Sprayberry v. Snow, 190 Ga. 723 (10 S.E.2d 179). While the acts of negligence charged against each defendant are set out separately, it is alleged that such acts of negligence jointly and concurrently caused the collision and damage sued for, and the petition sufficiently charges the defendants as joint tort-feasors. Kelly v. Georgia Railway Power Company,24 Ga. App. 439 (4) (101 S.E. 401). The judge did not err in overruling the special demurrers attacking the petition on the grounds that there was a misjoinder of parties and of causes of action.

3. The petition set out a cause of action against the defendants, Dan Plunket Shepherd and W. C. Shepherd, and was not *Page 228 subject to the demurrers here insisted upon, and the court did not err in overruling the demurrers thereto.

Judgment affirmed. Parker, J., concurs. Felton, J., concursSpecially.

ON MOTION FOR REHEARING.

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Addendum

In their motion for a rehearing, counsel for the plaintiffs in error contend that the judgment of the trial court sustaining their special demurrers to certain parts of the petition did not strike those parts of the petition, but that the defendant in error had a reasonable time after said judgment was entered to amend her petition to conform to the ruling made and thus avoid having those portions of her petition stricken; that a reasonable time had not elapsed at the time the bill of exceptions was certified by the trial judge and the defendant in error could still amend her petition to meet the special demurrers and the petition should be construed as if such allegations were still in the petition and the special demurrers had not been sustained; that if these allegations are considered as still in the petition, it will appear that the defendant in error is seeking to recover damages for injuries received both when the car in which she was riding struck the defendant Verner's car and when the car in which she was riding was struck by the car of W. C. Shepherd, which was being operated by the defendant Dan Plunket Shepherd. The contention of the plaintiffs in error that the defendant in error was seeking to recover damages for injuries received in both collisions and that she could still amend her petition to do so at the time the bill of exceptions was certified by the trial judge, can not legally be sustained. In their brief filed in this court, counsel for the defendant in error state, "Any slight injuries which the defendant in error may have received as a result of the first collision are not and have never been the injuries complained of as a basis for her claim for damages," and again in their brief in this court, "As pointed out hereinbefore, the injuries which are complained of and for which the joint action is brought, are solely those which were sustained as a result of the impact of the Shepherd car." It is apparent, therefore, that the defendant in error acquiesced in the ruling made by the trial judge, sustaining the special demurrers of the plaintiffs in error and striking from the petition those allegations referring to any injuries she may have received in the first *Page 229 collision, and that she did not seek in her petition, nor by amendment thereto, to recover damages for injuries received in both collisions; but that the injuries complained of in the petition and for which the recovery of damages is sought, were the injuries received by her in the second collision only. The motion for a rehearing is denied.

Felton and Parker, JJ., concur.