Opinion
40423.
DECIDED NOVEMBER 15, 1963.
Action for damages. DeKalb Superior Court. Before Judge Hubert.
Rose Lappas, Frank P. Lappas, for plaintiff in error.
Haas, Dunaway, Shelfer Haas, George A. Haas, contra.
"A pleading is alternative when it alleges substantive facts so disjunctively that it cannot be determined upon which of them the pleader intends to rely as a basis for recovery. And when a plaintiff's case is pleaded in the alternative, one version of which is good and the other not, his petition will, on demurrer thereto, be treated as pleading no more than the latter, because it must be construed most strongly against the pleader." Richards Associates, Inc. v. Studstill, 212 Ga. 375 (3) ( 93 S.E.2d 3).
DECIDED NOVEMBER 15, 1963.
Arnold Farkas sued Lillie H. Day and Max Kaufman to recover his damages, arising from injuries to his wife, resulting from a collision between automobiles operated by the defendants. It was alleged that the plaintiff's wife was a guest passenger in the automobile being operated by the defendant Kaufman. The petition, as finally amended, alleged that Oakview Road is a public street in the City of Decatur running generally in an easterly and westerly direction, that East Lake Drive is a public street in the City of Decatur running generally in a northerly and southerly direction, that such streets intersect, that traffic control devices (stop signs) control traffic traveling north and south on East Lake Drive while Oakview Road is a through street at said intersection, that at the time and place of the collision the automobile driven by the defendant Kaufman was being operated in a southerly direction on East Lake Drive and the automobile being operated by Lillie H. Day was being operated in a westerly direction on Oakview Road, that when the automobile in which plaintiff's wife was a guest passenger "reached the aforesaid intersection, and before entering same, it stopped in obedience to the traffic sign, and then at a low rate of speed of approximately five (5) miles per hour entered the said intersection. At a time when the automobile in which your petitioner's wife was riding had almost reached the center of said intersection, the automobile owned and operated by defendant Lillie H. Day entered the aforesaid intersection at a rapid rate of speed of twenty (20) to twenty-five (25) miles per hour." That the right front end of the Day automobile collided with the left front side of the Kaufman vehicle with great force and violence, substantially demolishing both vehicles and thereby causing the injuries to the plaintiff's wife, that at no time did the defendant Day reduce her speed or in any way turn her automobile to the left or right to avoid such collision, and that the Day automobile was to the left of the Kaufman automobile but did not yield the right of way to the Kaufman automobile. The allegations of negligence, relied on as being the direct and proximate cause of the injuries to the plaintiff's wife, were based on the premise, among others, that each defendant failed to yield the right of way to the other.
The trial court sustained the general demurrer of the defendant Kaufman to the petition as amended and it is to such adverse judgment that the plaintiff now excepts.
The sole question presented for decision is whether the plaintiff's petition set forth a cause of action against the host driver in as much as no demurrer of the defendant Day is before this court.
"When a plaintiff pleads his case in the alternative, one version of which is good and the other not, his petition will on demurrer be treated as pleading no more than the latter, since it will be construed most strongly against him. Baggett v. Edwards, 126 Ga. 463 ( 55 S.E. 250); Doyal v. Russell, 183 Ga. 518 ( 189 S.E. 32); Consolidated Distributors v. City of Atlanta, 193 Ga. 853, 858 ( 20 S.E.2d 421); Saliba v. Saliba, 201 Ga. 577, 583 ( 40 S.E.2d 511), and citations; Gregory v. Taylor, 84 Ga. App. 717 ( 67 S.E.2d 192); Eubanks v. Akridge, 91 Ga. App. 243 ( 85 S.E.2d 502). In Doyal v. Russell, supra, (p. 534) the court ruled: `Where any one of several averments alleged in the alternative is insufficient, the entire pleading is rendered bad.'" Richards Associates, Inc. v. Studstill, 212 Ga. 375, 377 ( 93 S.E.2d 3).
The petition in the present case alleges, in seeking to hold the defendant Day, that the host driver Kaufman had the right of way and that the defendant Day failed to yield such right of way to him, and elsewhere alleges, in seeking to hold the host driver Kaufman, that the host driver after stopping started into the intersection at a time when the automobile being operated by the defendant Day was so close as to constitute an immediate hazard which allegation would mean that the defendant Day and not the host driver had the right of way under the Act of 1953 (Ga. L. 1953, Nov. Sess., pp. 556, 590; Code Ann. § 68-1652).
The pleadings being in the alternative must be construed as failing to set forth a cause of action against the demurring defendant under the decision of the Supreme Court in Richards Associates, Inc. v. Studstill, 212 Ga. 375, supra. See also Fair v. Huddle, Inc., 98 Ga. App. 466, 469 ( 106 S.E.2d 72). Accordingly, the trial court did not err in sustaining the general demurrer of the defendant Kaufman and in dismissing the petition as to him.
Judgment affirmed. Frankum and Jordan, JJ., concur.