Davis v. Metzger

Court of Appeals of Georgia

Davis v. Metzger

168 S.E.2d 866, 119 Ga. App. 750, 1969 Ga. App. LEXIS 1233

Court of Appeals of Georgia·Decided May 26, 1969·No. 44253, 44254, 44255·Published·Cited by 13 cases

Opinions

Haul, Judge.

1. The motion to dismiss the appeal is denied.

2. The plaintiffs argue that the fact of driving on the left side of the road is negligence per se, and the defendant’s denial of negligence is but an allegation of a conclusion in the face of this fact. The statutory requirements to drive on the right side of the roadway (Ga. L. 1953, Nov. Sess., pp. 556, 581, 582, as amended; Code Ann. §§ 68-1633, 68-1634) on their face are not absolute and do not prohibit driving on the left at all places and in all circumstances. The allegations of the pleadings in the present case do not establish as a matter of law that the defendant’s driving on the left side of the road was a violation of a statute and negligence per se. That the defendant at the trial may be unable to prove that his driving on the left side of the roadway was not a statutory violation does not authorize a judgment on the pleadings. M. L. Lee & Co. v. Cardboard &c. Corp., 36 F.R.D. 27, 29 (E.D. Pa. 1964). We cannot say that the pleadings in these cases present a “bare legal question.” See Rosenhan v. United States, 131 F2d 932, 934 (10th Cir. 1942).

Under the Civil Practice Act, general allegations are sufficient to support a plaintiff’s claim for relief. Ga. L. 1966, pp. 609, 619, as amended ('Code Ann. § 81A-108); Vaughn v. McDaniel, 118 Ga. App. 408 (163 SE2d 844); Hunter v. A-1 Bonding Service, 118 Ga. App. 498 (164 SE2d 246), cert. denied 118 Ga. App. 866. In most cases the same liberal rule will apply to the defendant’s pleadings. Code Ann. § 81A-108 (b, f); 2A Moore’s Federal Practice 1813, § 8.19. Since the fact admitted by the [752]*752defendant does not clearly entitle any of the plaintiffs to a judgment on their motions, the trial court did not err in overruling the motions for judgment on the pleadings. Nickel Rim Mines Ltd. v. Universal-Cyclops Steel Corp., 202 FSupp. 170, 172 (D. N. J. 1962); 2A Moore’s Federal Practice 2342, § 12.15; 1A Barron and Holtzoff 401, § 360.

Judgments affirmed.

Jordan, P. J., concurs. Whitman, J., concurs specially.

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Haul, Judge.

1. The motion to dismiss the appeal is denied.

2. The plaintiffs argue that the fact of driving on the left side of the road is negligence per se, and the defendant’s denial of negligence is but an allegation of a conclusion in the face of this fact. The statutory requirements to drive on the right side of the roadway (Ga. L. 1953, Nov. Sess., pp. 556, 581, 582, as amended; Code Ann. §§ 68-1633, 68-1634) on their face are not absolute and do not prohibit driving on the left at all places and in all circumstances. The allegations of the pleadings in the present case do not establish as a matter of law that the defendant’s driving on the left side of the road was a violation of a statute and negligence per se. That the defendant at the trial may be unable to prove that his driving on the left side of the roadway was not a statutory violation does not authorize a judgment on the pleadings. M. L. Lee & Co. v. Cardboard &c. Corp., 36 F.R.D. 27, 29 (E.D. Pa. 1964). We cannot say that the pleadings in these cases present a “bare legal question.” See Rosenhan v. United States, 131 F2d 932, 934 (10th Cir. 1942).

Under the Civil Practice Act, general allegations are sufficient to support a plaintiff’s claim for relief. Ga. L. 1966, pp. 609, 619, as amended ('Code Ann. § 81A-108); Vaughn v. McDaniel, 118 Ga. App. 408 (163 SE2d 844); Hunter v. A-1 Bonding Service, 118 Ga. App. 498 (164 SE2d 246), cert. denied 118 Ga. App. 866. In most cases the same liberal rule will apply to the defendant’s pleadings. Code Ann. § 81A-108 (b, f); 2A Moore’s Federal Practice 1813, § 8.19. Since the fact admitted by the [752]*752defendant does not clearly entitle any of the plaintiffs to a judgment on their motions, the trial court did not err in overruling the motions for judgment on the pleadings. Nickel Rim Mines Ltd. v. Universal-Cyclops Steel Corp., 202 FSupp. 170, 172 (D. N. J. 1962); 2A Moore’s Federal Practice 2342, § 12.15; 1A Barron and Holtzoff 401, § 360.

Judgments affirmed.

Jordan, P. J., concurs. Whitman, J., concurs specially.

Davis v. Metzger, 168 S.E.2d 866, 119 Ga. App. 750, 1969 Ga. App. LEXIS 1233 (Ga. Ct. App. 1969).

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Opinions

1. The motion to dismiss the appeal is denied.

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