Boner v. Soltero
Boner v. Soltero
Opinion of the Court
Clarence Boner, the plaintiff husband, and Doris Boner, the plaintiff wife, brought separate suits, seeking recovery of damages arising out of a multiple automobile collision, against Samuel M. Slotin, driver of one car, and Victor A. Soltero, driver of another car, and Victor M. Soltero, the father of Victor A. Soltero, under the family car doctrine. The petition in both cases, so far as material here, alleged that all these cars were on a ramp which entered an expressway; that the car driven by the plaintiff wife was immediately behind a truck; behind the plaintiff wife was a car driven by Slotin; and behind him a car driven by the younger Soltero; that the track began to move forward onto the expressway and the plaintiff wife began to move forward slowly at a speed of five to ten miles per hour; that as plaintiff wife’s automobile began to move forward it was suddenly and violently struck .from behind by the automobile driven by Slotin then and there operated by Slotin at a speed of 15 miles per hour, or greater; that within one or two seconds thereafter the automobile driven by Soltero crashed violently into the rear of the Slotin automobile, knocking the same again into and against the rear of the plaintiff wife’s automobile; that as the result of said multiple impacts, the head, neck and shoulders of the plaintiff wife were suddenly and violently thrown backwards and forwards in a repeated “whipcracking” motion, which caused her great bodily injury and damage. Various acts of negligence, principally related to following too .closely and not keeping a proper lookout, were alleged against the two driver defendants. It
1. “Where the negligent acts of two persons combine, although not done simultaneously, to causé an injury to a third person they are joint tortfeasors, and the release of the first tortfeasor will release the other.” City of Buford v. Hosch, 104 Ga. App. 615 (122 SE2d 287). The ruling to the contrary in Close v. Matson, 102 Ga. App. 663 (117 SE2d 251) in Division 2 of the opinion in that case was criticized as being obiter dictum in McDougal v. Johnson, 104 Ga. App. 233 (121 SE2d 417), and City of Buford v. Hosch, 104 Ga. App. 615, supra. In our opinion, the petition in the present case sufficiently alleges that the injury was caused by both collisions so as to come within the rule “that even though voluntary, intentional concert is lacking, if the separate and independent acts of negligence of several persons combine naturally and
2. It follows that the trial court erred in sustaining the demurrers excepted to and in dismissing the respective petitions upon failure of the respective plaintiffs to amend.
Judgments reversed.
070rehearing
On Motion for Rehearing.
Demurrers to a petition on the grounds of misjoinder of parties and causes of action are special demurrers, McCullough v. Atlantic Refining Co., 181 Ga. 502 (2) (182 SE 898), Farmers & Merchants Bank v. Gibson, 211 Ga. 270 (2) (85 SE2d 513), and while the sustaining of such demurrers, without more, may be a final adjudication on the subject in the absence, of exceptions thereto, Smith v. Bugg, 35 Ga. App. 317 (133 SE 49), it is not a final judgment which will support a direct bill of exceptions to this court. Harrell v. Southern R. Co., 13 Ga. App. 409 (79 SE 240). It follows that such a ruling, with time to amend, does not become such a final judgment after the time for amendment has expired. And, where, after the time allowed for amendment has expired without the filing of an amendment, the trial judge, because of failure to amend, dismisses the petition on motion of the demurrant, a bill of exceptions assigning error on such final judgment of dismissal and also assigning error on the prior ruling on demurrer, properly presents to. this court for decision the question as to whether the trial court erred in sustaining such demurrers. See Elliott v. Orange Crush Bottling Co., 56 Ga. App. 313 (1) (192 SE 530). As to the procedure involving
Motion for rehearing denied.
Reference
- Full Case Name
- BONER v. SOLTERO Et Al. (Two Cases)
- Cited By
- 7 cases
- Status
- Published