Opinion
42349, 42350.
ARGUED OCTOBER 3, 1966.
DECIDED OCTOBER 21, 1966.
Actions for damages. Fulton Superior Court. Before Judge Pharr.
Philip T. Keen, Wilson Brooks, for appellants.
N. Forrest Montet, for appellees.
Where after certain special demurrers are sustained, the petition, with the objectionable matter deleted, would still set forth a cause of action, and where the trial court does not in its order adjudicate either that no cause of action is set forth or that the petition is subject to dismissal unless purged, it is error to sustain a motion to dismiss subsequently filed on the sole ground that the amendment filed did not meet the objections urged by the demurrers.
ARGUED OCTOBER 3, 1966 — DECIDED OCTOBER 21, 1966.
Each of the petitions involved in this appeal was attacked by certain grounds of special demurrer only. Orders were entered up sustaining certain special demurrers with leave to amend. Each plaintiff then amended by completely redrafting the petition, and each of the redrafts retained certain language to which special demurrers had been sustained. A motion to dismiss on the ground that the petition as redrafted did not cure the grounds of defendants' demurrers was filed and sustained, and the petitions were dismissed.
Leaving out all allegations to which special demurrers were sustained, the petition of Mary Davis, both before and after amendment, alleged the following facts: that she was a passenger in an automobile which was in a stopped position 4 feet west of Campbellton Road headed west into a private driveway waiting for the defendants to emerge from the same driveway into Campbellton Road; that the defendant driver drove into and about three fourths of the way across Campbellton Road, and then placed the vehicle in reverse gear and backed it back into the driveway and in so doing struck the automobile in which the plaintiff was sitting. The defendant driver, agent of the defendant owner, was negligent in failing to maintain a proper lookout, in failing to stop his vehicle before it crashed into the vehicle in which plaintiff was riding, in failing to anticipate the presence of plaintiff's automobile at said place and take necessary precautions to avoid a collision. The plaintiff suffered a severe back injury resulting in permanent disability, and sued for her physical injuries and pain and suffering, both physical and mental, past, present and prospective.
(a) "When a petition alleges facts showing the existence of a duty owed to the plaintiff by the defendant, a violation of that duty by the defendant and injury and damage resulting to the plaintiff therefrom, it is sufficient to withstand a general demurrer. Vickers v. Georgia Power Co., 79 Ga. App. 456 ( 54 S.E.2d 152); Harvey v. Zell, 87 Ga. App. 280, 284 (1b) [73 S.E.2d 605]." Wilks v. Lingle, 112 Ga. App. 176 (2) ( 144 S.E.2d 552). The petition, as originally drafted and as subsequently redrafted, and deleting all matter attacked by special demurrer, still meets these minimum requirements. It was not, either before or after amendment, subject to general demurrer on the ground that no cause of action was set out. As a matter of fact, no such general demurrer was ever filed, but an adjudication of the sufficiency of the pleadings to set out a cause of action is necessarily a prerequisite to the precise question here raised.
(b) The sustaining of special demurrers to a pleading has the effect of deleting the objectionable matter, and may or may not result in leaving the petition open to general demurrer or motion to dismiss, depending upon whether or not the matter expunged is necessary to set out a cause of action. This latter situation obtained in the cited cases of Meeks v. Douglas, 112 Ga. App. 742 ( 146 S.E.2d 127); Driskal v. Mutual Ben. Life Ins. Co., 144 Ga. 534 ( 87 S.E. 668). Again, a petition may be attacked by special demurrer for misjoinder or duplicity and, if the defect is not cured, may become subject to dismissal. Ford v. American Discount Co., 112 Ga. App. 559 ( 145 S.E.2d 667); Thomas v. Georgia R. c. Co., 23 Ga. App. 428 (3) ( 98 S.E. 360). Also, a petition may originally be attacked by both general and special demurrer, and the court, sustaining both general and special demurrers with leave to amend, will be justified in dismissing the petition if it is not subsequently amended so as to supply that part of the cause of action which was originally lacking. McGarity v. Brewer, 84 Ga. App. 341 (2) ( 66 S.E.2d 157); Northside Manor, Inc. v. Vann, 219 Ga. 298 ( 133 S.E.2d 32).
In a different category are those special demurrers the sustaining of which merely serves to expunge from the petition matter which is irrelevant, conclusory, or too vague and indefinite to be actionable, but which do not strike down the entire cause of action by deleting something necessary to its prosecution. Alford v. Davis, 21 Ga. App. 820 (5) ( 95 S.E. 313); McBurney v. Woodward, 84 Ga. App. 807, 813 ( 67 S.E.2d 398); McSwain v. Edge, 6 Ga. App. 9, 11 ( 64 S.E. 116); Watts v. Rich, 49 Ga. App. 334, 336 ( 175 S.E. 417). The sole ground of the motion to dismiss here was that the plaintiff's amendment had not met the criticism of the special demurrers, and this objection, although well taken, is not ground for dismissal of the entire petition.
This ruling applies to both case No. 42349 and No. 42350.
Judgments reversed. Nichols, P. J., and Hall, J., concur.