Burt, Burt & Rentz, D. D. Rentz, Van Cheney, for appellant.

Where an infant by next friend brings an action against a defendant seeking to recover for alleged injuries received as the result of the alleged negligent operation of an automobile by the defendant, the defendant may set up as a defense to the action that the negligence of the father of the child was the sole proximate cause of the injuries received; and such defense does not impinge upon the rule in Code 105-205, that the negligence of a parent is not imputable to the child, for such defense necessarily excludes the defendant's negligence, if any, as a proximate cause contributing to the injuries.

Melinda Stroud, by next friend, brought an action against William R. Willingham seeking to recover damages for injuries sustained when "defendant negligently drove a 1963 Chevrolet automobile into and over plaintiff." The defendant's answer, as amended, alleged as a fourth and fifth defense the following:. "4. The sole proximate cause of the alleged injuries to the plaintiff was the negligence of the plaintiff's father, Jerry Stroud, in failing to properly attend and care for the infant plaintiff." (Emphasis supplied) and "5. The sole proximate cause of the alleged injuries to the plaintiff was the negligence of plaintiff's father, Jerry Stroud, in failing to exercise ordinary care to prevent the injuries to the plaintiff in this case." (Emphasis supplied.) The plaintiff moved to strike "the paragraph designated as the fourth defense, and the paragraph designated as fifth defense upon the grounds that said fourth defense and said fifth defense fail to set forth a defense in law to the plaintiff's complaint." The court overruled the motion and plaintiff, with a proper certificate for review, appealed to this court.

It has been many times held that where the sole proximate cause of an injury to the plaintiff is the negligence of someone other than the defendant, there can be no recovery against the defendant, although the defendant may have been guilty of negligence. See Barnes v. Holcomb, 110 Ga. App. 775, 777 (140 SE2d 88) in which it was said: "In cases of this nature the negligence, if any, of the host driver is not imputable to the guest passenger, East Tenn. &c. R. Co. v. Markens, 106 Ga. App. 34 (4) (126 SE2d 254). However, the plaintiff is not entitled to recover against the defendant if the host driver's negligence of any degree, either gross, ordinary, or slight, was the sole proximate cause of plaintiff's injuries, for this necessarily excludes the defendant's negligence as a proximate cause contributing to the injuries. See Central of Ga. R. Co.

v. Reid, 85 Ga. App. 693 (2) (70 SE2d 163)."

Appellant also relies heavily upon the case of Atlantic C. L. R. Co. v. Coxwell, 93 Ga. App. 159 (91 SE2d 135), overruling certain cases among which were Brinson v. Davis, 93 Ga. App. 159, supra, is therefore no authority to the contrary of what we have here ruled.

The next question that arises is whether the additional language in the fourth and fifth defenses, emphasized in the statement of facts, is sufficient in either instance to bring the defenses asserted within the ambit of those prohibited by the proper application of Code 105-205. The additional language in the fourth defense, "in failing to properly attend and care for the infant plaintiff" clearly does not seek to nor does it limit the defense already stated that the negligence of the father was the sole proximate cause of the injury to the child. The additional language of the fifth defense, however, in asserting that the father failed to exercise ordinary case to prevent the injuries to the child, does border upon an attempt to use the avoidance rule as a defense substituting the negligence of one other than the plaintiff, which would be imputation of the negligence of the father to the child in violation of Code 105-205. Under the present rules of practice, however, we must construe the pleading in favor of the pleader (Hamilton v. Lockridge, 123 Ga. App. 609 (1) (181 SE2d 910)) and since the pleading has language which bases the defense upon the negligence of the father being the sole proximate cause of the injuries to the child, we must uphold the pleading as against the motion made. Whether the added language in either the fourth or fifth defense is subject to be stricken under the provision of subsection (f) of Section 12 of the Civil Practice Act (Ga. L. 1966, pp. 609, 622; Code Ann. 81A-112), or whether either the fourth or fifth defense is subject to be stricken as redundant under this section, we do not decide, as no such questions are raised by the motions made.

The trial court did not err in overruling the motion to strike the fourth and fifth defenses on the asserted ground that they failed to set forth a defense to the plaintiff's complaint.

Judgment affirmed. Hall, P. J., and Quillian, J., concur.

1972