Opinion
38413.
DECIDED SEPTEMBER 27, 1960.
Action for damages. DeKalb Civil Court. Before Judge Mitchell. April 28, 1960.
Everett L. Almon, for plaintiffs in error.
Edward D. Wheeler, contra.
1. When a petition contains two or more counts and each sets forth a distinct and separate cause of action, the plaintiff will not be required to elect before evidence is introduced, upon which count he will proceed.
2. Where, as here, there has been no bona fide attempt to comply with Code Ann. § 70-305 in briefing the evidence and removing all immaterial and irrelevant portions thereof, any assignments of error which would require reference to the purported brief of evidence will not be considered by the court.
DECIDED SEPTEMBER 27, 1960.
Mr. and Mrs. Henry C. Daniels, filed suit against Jimmy Frank Bruce for damages which allegedly were sustained as the result of negligence on the part of the defendant. The petition as originally drawn was in one count, but by amendment a second count was added; defendant did not file demurrers to either count of the petition, but before proceeding with the trial of the case defendant's counsel moved the court to require the plaintiffs to elect which of the two counts of the petition they would proceed on, the trial court acceded to the defendant's motion and did require, over their objections, the plaintiffs to elect which of the two counts they would proceed on.
The plaintiffs assign error on this judgment as well as the ruling in the exclusion of certain evidence, and on the judgment of the trial court in granting the defendant's motion for nonsuit, and thus the case is here for review.
1. The first assignment of error based on the trial court's ruling requiring the plaintiffs to make an election as to which of the two counts of the petition they would proceed on is well taken and meritorious. "A plaintiff who sues to recover damages for a personal injury may embrace in his petition two or more separate counts, setting forth different accounts of the manner in which he was injured, so as to meet any anticipated variations in the proof which may be adduced at the trial." Gainesville Dahlonega Electric Ry. Co. v. Austin, 127 Ga. 120 (1) ( 56 S.E. 254). Also, "It is permissible to embrace in one petition in different counts as many causes of action as plaintiff sees proper, provided they are all of a similar nature." Feeney Hay Co. v. Suggs, 60 Ga. App. 42 (2) ( 2 S.E.2d 806); Cooper v. Portner Brewing Co., 112 Ga. 894 ( 38 S.E. 91). See also Southern Ry. Co. v. Chambers, 126 Ga. 404 (5) ( 55 S.E. 37, 7 L.R.A. (NS) 926), which states: "When a petition contains two or more counts and each sets forth a separate and distinct cause of action, the plaintiff will not be required to elect upon which count he will proceed." In the case under consideration here count 1 of the petition alleges that the object causing the injury was a granite curb stone which came from the curbing along the street and was placed in the street by the defendant. Count 2 alleges that the objects causing the injury were a concrete slab, dirt and other debris, which came from the defendant's yard. Clearly under the pleadings here the plaintiffs were entitled to attempt to prove the allegations contained in either one or both counts and the trial court's denial of this right by requiring the plaintiffs to elect which one of the two counts they would proceed on was reversible error.
2. Each of the remaining assignments of error, in order to be passed on would require a consideration of the evidence, and the purported brief of evidence in this case is a stenographic report of the trial of the case and obviously no attempt has been made to delete immaterial and irrelevant portions therein. This purported brief of evidence is replete with colloquies between counsel and counsel, counsel and the court, arguments to the jury, questions propounded to prospective jurors, objections to evidence and rulings thereon, all of which are not properly a part of the brief of evidence, and under the decisions of the Supreme Court this does not show a bona fide attempt to brief such evidence as required by Code Ann. § 70-305. See Calhoun v. State, 211 Ga. 819 ( 89 S.E.2d 197); Turner v. Turner, 205 Ga. 578 ( 54 S.E.2d 410); and Keith v. State, 213 Ga. 743 ( 101 S.E.2d 705).
Accordingly, since these assignments of error would require reference to the purported brief of evidence, this court will not therefore pass on them.
Judgment reversed. Felton, C. J., and Bell, J., concur.