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HAYES v. STRICKLAND et al.; and vice versa (two cases).
Actions for damages. Gwinnett Superior Court. Before Judge Pittard.
DEEN, Judge.
1. Where general demurrers are sustained with leave to amend and the plaintiff thereafter amends to meet the grounds of objection, the original order is not subject to review in this court. Where a material amendment is filed in an attempt to cure the precise defects pointed out by the original grounds of demurrer, such amendment will retain the case in court in the absence of a renewed demurrer, motion, or objection on the part of the opposing party made for the purpose of testing the sufficiency of the amendment.
2. A plaintiff seeking to hold the personal representative of the estate of a decedent and the surety on her bond as temporary administratrix liable in tort because of the negligence of the deceased person may not file an action against them within the 12 month statutory exemption afforded representatives of deceased persons. This is true although the temporary administratrix thereafter filed a statement with the ordinary that all debts were paid and she had distributed the estate to herself as sole heir, but where it does not appear that any order of discharge was prayed for or granted.
3. Certain special demurrers were erroneously sustained on the ground that they constituted conclusions of the pleader.
4. Under the new Appellate Practice Act the enumeration of errors must be filed in the office of the Clerk of the Court of Appeals by the appellant in a cross appeal at the time the briefs are filed, which must be within 15 days after the cross appeal is docketed in the Clerk's office. No extension of time for filing the enumeration of errors can be granted except for providential cause occurring prior to the expiration of the time for filing these documents.
These companion suits are actions by Odis Hayes and his wife for injuries sustained by him when an automobile in which he was riding was confronted by two approaching automobiles driven by Harold Harrison and Wayne Strickland which were racing with each other at speeds of approximately 100 miles per hour and which by their position blocked the entire highway. To avoid a head-on collision with Strickland's car the Chevrolet in which Hayes was riding was forced into a ditch where the automobile driven by Harrison collided with it and caused severe personal injury to the plaintiff. Harrison was killed in the crash. His mother, the defendant Mrs. Buchanan, was appointed temporary administratrix of the estate, the surety on her bond being the defendant O. F. Thompson. Suit was filed in Case No. 41576 against Mrs. Buchanan individually and as administratrix, Thompson as surety, Wayne Strickland, and his father Lonnie Strickland. Case No. 41580, brought by Mrs. Hayes, differs only in that it does not name as defendants Thompson or Mrs. Buchanan in her capacity as temporary administratrix.
Jenkins, 212 Ga. 211 (3) (91 SE2d 491). A parent who furnishes an automobile for the pleasure and convenience of the members of his family makes the use of such vehicle for such purpose his business, and a member of the family driving it with the parent's express or implied consent renders the parent liable for his negligence. Griffin v. Russell, 144 Ga. 275 (87 SE 10, LRA 1916P 216, AG 1917D 994). The doctrine is as applicable where it is owned or furnished by the mother as where it is provided by the father. Ficklen v. Heichelheim, 49 Ga. App. 777 (176 SE 540). Nor is ownership per se a necessary factor. Hirsch v. Andrews, 81 Ga. App. 655 (59 SE2d 552). It follows that where the plaintiff amended to meet the specific ground of demurrer urged, the order granting leave to attend presents no question for decision. It was error to dismiss this defendant in her individual capacity as a party defendant.
2. There are no exceptions stated in Code 113-1526 to the rule that an action to recover a debt due by the decedent shall not be commenced against the administrator of the estate of such decedent until the expiration of 12 months from his qualification. A temporary administrator is, no less than a permanent administrator, a personal representative of the estate ( Louisville &c. R. Co. v. Chaffin, 84 Ga. 519 (11 SE 891)), and may therefore be made a defendant in an action such as this under the provisions of Code Ann. 3-505, after the statutory time has lapsed. If, after a temporary administrator is appointed, a petition is filed with the ordinary of the county seeking a judgment of no administration necessary (Code Ann. 113-1234) or, if no objections are filed and an order is granted and the proceeds of the estate distributed, the creditor has a right to proceed directly against the heirs to the extent of the property received by each. Code Ann. 113-1238. "Where there is no necessity for the appointment of a permanent administrator and a temporary administrator has been appointed, the temporary administrator may be discharged in the same manner as provided for discharge of permanent administrators." Code Ann. 113 1240.
It is contended that Mrs. Buchanan as temporary administratrix is estopped to rely on her twelve-month exemption from suit because of her pleading filed with the ordinary within the period alleging that all debts were paid and that she has distributed the assets of the estate to herself as sole heir at law of the decedent. It does not appear whether or not the decedent owned any real estate, but obviously the only assets to which Mrs. Buchanan had title as a temporary administrator must consist of personalty, and she had no authority in this capacity to make any distribution of real property. Langford v. Langford, 82 Ga. 202 (8 SE 76). Thus the plaintiff has a remedy by, (a) filing objections in the court of ordinary to any pleading seeking confirmation of a distribution of the estate or discharge of the temporary administrator; (b) if such distribution is made, suing the heirs directly as such distributees to the extent of the respective shares received by each; (c) after the expiration of 12 months, bringing an action against the administrator. In the latter event the surety would be liable on a judgment against the administrator, but the mere fact that the temporary administrator seeks an order approving a distribution to herself does not estop her and her surety from defending on the ground that an action against her on the bond was brought prematurely. The trial court did not err in sustaining the plea in abatement and the general demurrers of Mrs. Buchanan as temporary administratrix and Thompson as surety on the bond.
3. Where the drivers of two automobiles see fit to race each other at an unlawful rate of speed on a public highway and another is injured thereby, the negligence of both drivers is concurring. Landers v. French's Ice Cream Co., 98 Ga. App. 317 (106 SE2d 325, 74 ALR2d 1050). This petition alleges the location of the collision with exactitude, and sets out that the oncoming cars were abreast, were being driven at approximately 100 miles per hour, that they had within the preceding 10 seconds driven through a 35-mile speed zone and across a narrow bridge; that they were proceeding up a hill approaching a sharp curve, and that their negligence in causing the collision was concurrent. Sufficient facts are set out to support the conclusion pleaded that a safe and reasonable speed at the time would have been 35 miles per hour and that the negligence of the defendant drivers was concurrent. The location of the speed zone and of the bridge is sufficiently alleged in regard to the place of collision. It was accordingly error for the trial court to sustain the five grounds of special demurrer urged by the defendants Strickland on the ground that the above allegations constituted conclusions of the pleader.
4. A cross appellant in this court must, at the time the brief is filed in the clerk's office, also file an enumeration of the alleged errors relied upon therein. Code Ann. 6-810, Ga. L. 1965, pp. 240, 243. Under Rule 15 of the Court of Appeals briefs of cross appellants must be filed within 15 days of the day the cross appeal is docketed, and failure to do so will be construed as an abandonment of the appeal unless it be shown to the court that the failure was due to providential cause occurring prior to the expiration of the time for filing. Since no enumeration of errors or brief was filed by the cross appellant in cases 41588 and 41589 within the time limited and there has been no showing that the delay was due to providential cause, the cross appeals are dismissed for lack of prosecution.
Judgment reversed in part and affirmed in part in case No. 41576; reversed in case No. 41580. Cross appeals 41588 and 41589 dismissed. Felton, C. J., and Jordan, J., concur.
Merritt & Pruitt, Frank Love, Jr., Robert W. Patrick, Powell, Goldstein, Frazer & Murphy, Stark & Stark, Homer M. Stark, for appellees.
William M. Morrison, Hugh G. Head, Jr., for appellants.
Friday May 22 20:57 EDT

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