Opinion
36248.
DECIDED JULY 2, 1956.
Tort; homicide by vehicle. Before Judge Manning. Cobb Superior Court. April 5, 1956.
Gordon M. Combs, for plaintiff in error.
J. G. Roberts, Dunaway Embry, contra.
The court erred in sustaining the general demurrer and dismissing the original petition. The court also erred in sustaining the demurrers to count 3 of the petition. The court did not err in sustaining the demurrers to count 4 of the petition.
DECIDED JULY 2, 1956.
Floyd H. Blackwell brought an action for the death of his son who was killed by a truck of the Southland Butane Gas Company. The deceased was lying on a public road when the driver of the truck hit and killed him. The petition was demurred to and amended several times. Finally the case came on for trial and resulted in a verdict and judgment for the plaintiff. That judgment and verdict was excepted to and the Court of Appeals in Southland Butane Gas Co. v. Blackwell, 91 Ga. App. 277 ( 85 S.E.2d 542), affirmed the judgment of the trial court. The case then went by certiorari to the Supreme Court ( Southland Butane Gas Co. v. Blackwell, 211 Ga. 665, 88 S.E.2d 6), where the decision of the Court of Appeals was reversed, thus reversing the judgment of the superior court. The case then went back to the superior court for a new trial. Before the case was tried the plaintiff filed two amendments known as counts 3 and 4. The case stood on the original petition alleging simple negligence and these two added counts. The substance of count 3 alleges that the defendant wilfully and wantonly killed the deceased.
Count 4 alleges that the defendant was negligent in that, after he saw or should have seen the defendant in the road 100 feet ahead he failed to drive so as to avoid hitting him and failed to stop before striking him; that he was negligent in failing to anticipate his presence on the highway, and that the defendant's driver "knew or in the exercise of ordinary care should have known of the perilous situation of the said Loyal Blackwell, and realized, or in the exercise of ordinary care should have realized or had reason to realize his helpless condition."
The defendant demurred to the petition as amended generally and specially. The trial court sustained the demurrers, and this judgment is assigned as error.
It is contended by the defendant that the petition was duplicitous. The petition, as amended, is not duplicitous. The petition, as amended, did not set out a new cause of action. In Foster v. Southern Ry. Co., 42 Ga. App. 830 (2) ( 157 S.E. 371), this court said: "A complaint for damages for homicide, which charges simple negligence only, may be amended by adding a new count alleging that the homicide was the result of wilfulness or wantonness on the part of the defendant." Counsel also cites Bozikis v. Kolgaklis, 52 Ga. App. 804 ( 184 S.E. 764) and Atlantic Coast Line R. Co. v. Willett, 89 Ga. App. 712 ( 80 S.E.2d 849). In support of this contention counsel cites Buffington v. Atlanta, B. C. R. Co., 47 Ga. App. 85 ( 169 S.E. 756). The facts in that case show that the pleadings were duplicitous but not so in the instant case. We have read with particular care Georgia Power Co. v. Deese, 78 Ga. App. 704 ( 51 S.E.2d 724). A careful comparison of the facts in that case with the facts in the instant case shows that that case is not authority for affirmance of the instant case.
Regarding count 4, under the allegations thereof, there are no facts alleged which, under the law, would require the operator of the truck to anticipate that anyone would be lying on the highway, as the deceased was alleged to be, in the darkness of the night. It is our opinion that to hold that such should be anticipated would be dangerous to users of the highway.
The court erred in sustaining the general demurrer and dismissing the original petition. The court also erred in sustaining the demurrers to count 3 of the petition. The court did not err in sustaining the demurrers to count 4 of the petition.
Judgment affirmed in part and reversed in part. Townsend and Carlisle, JJ., concur.