Opinion
42857.
ARGUED JUNE 5, 1967.
DECIDED OCTOBER 13, 1967.
Action for damages. Chatham Superior Court. Before Judge McWhorter.
Anton F. Solms, Jr., Oliver Maner, Thomas S. Gray, Jr., for appellant.
1. Where special demurrers to paragraphs of a petition were sustained, with 20 days allowed for amending, and there was neither an extension of the time for amending by any subsequent order of the court nor a tendering of any amendment within the time allowed, it was error to allow, over objection that it came too late, an amendment after expiration of the time allowed.
2. Where all charges of negligence against the defendant were deleted from the petition by the sustaining of demurrers thereto, and the time allowed for amending to meet the defect had expired, the petition was subject to the general demurrer and overruling it was error.
ARGUED JUNE 5, 1967 — DECIDED OCTOBER 13, 1967.
Sandy Pushay's widow brought suit against Georgia Ports Authority to recover the full value of his life, alleging in Paragraph 6 that while her husband worked as a flagman on a barge in the Savannah River, owned by the Willis Company, an employee of the Ports Authority operating a crane in loading materials on the barge caused the boom of the crane to strike her husband and knock him into the hold of the barge, injuring him fatally. In Paragraph 7 the defendant was alleged to have been negligent in failing to keep a proper lookout for plaintiff's husband, in not having proper care and control of the crane, in negligently allowing the crane to knock him from his feet into the hold of the barge and in killing him. Special demurrers were filed to Paragraphs 6 and 7 of the petition (the only paragraphs in which any reference was made to the injuring of plaintiff's husband or of negligence in so doing) and these were sustained by order of the court February 17, 1967, with leave to amend by March 9, 1967. Plaintiff failed to amend by March 9, but on March 23 tendered an amendment which, if allowed, would meet the special demurrers. The amendment was allowed over objection that it came too late, and defendant insisted that its general demurrer be sustained and the petition dismissed.
The order sustaining the special demurrers and fixing the time within which to amend was entered during the December term of Chatham Superior Court, but the time for amending extended into the March term and, of course, the order allowing the amendment and overruling the general demurrer was made during the March term. There was no order extending the time for amending.
From the order allowing the amendment, over the objection that it came too late, and then overruling the general demurrer, defendant appeals.
1. Error is enumerated on the allowance of the amendment at a time beyond that specified in the order sustaining the demurrers within which an amendment could or should be offered to the petition for meeting the ruling. This court found itself unable to arrive at a satisfactory answer to the question as to whether the court had the right or power to allow the amendment beyond the time allowed, no seasonable extending order having been obtained, due to apparent conflicts in many of the decisions of both courts and the question was certified to the Supreme Court. It has answered that in these circumstances the court was without power or authority to allow the amendment. Georgia Ports Authority v. Pushay, 223 Ga. 616 (S.E.2d). Consequently we hold that allowance of the amendment was error.
See the following cases: Northside Manor, Inc. v. Vann, 219 Ga. 298 ( 133 S.E.2d 32); Allanson v. Vincent, 216 Ga. 112 ( 114 S.E.2d 851); Blythe v. White, 178 Ga. 488 ( 173 S.E. 421); Greer v. Protective Mortgage Co., 189 Ga. 217, 219 (3) ( 5 S.E.2d 751); Zipperer v. Helmnly, 148 Ga. 480, 482 (1) ( 97 S.E. 74); Georgia R. Power Co. v. Kelly, 150 Ga. 698, 699 ( 105 S.E. 300); Smith v. Bugg, 35 Ga. App. 317, 319 ( 133 S.E. 49); Babb Norton v. Thomasville Live Stock Co., 17 Ga. App. 384 ( 87 S.E. 159); Hinson v. Mutual Fertilizer Co., 19 Ga. App. 121 ( 91 S.E. 241); Watson v. Atlanta Gas Light Co., 46 Ga. App. 326 ( 167 S.E. 718); Coleman v. Davis, 59 Ga. App. 750, 754 ( 2 S.E.2d 148); Harris v. Haralson Farm Supply Co., 95 Ga. App. 573, 574 ( 98 S.E.2d 394); Smith v. Goodwin, 103 Ga. App. 248 ( 119 S.E.2d 35); Parsons v. Foshee, 80 Ga. App. 127 (2) ( 55 S.E.2d 386); Hayes v. Simpson, 83 Ga. App. 22 ( 62 S.E.2d 441).
2. Since the allowance of the amendment was error, it must follow that with the petition stripped of any charge of negligence against the defendant, it was likewise error to overrule the general demurrer.
Judgment reversed. Felton, C. J., Bell, P. J., Jordan, P. J., Hall, Pannell, Deen, Quillian and Whitman, JJ., concur.