Bibb County v. McDaniel, No. 47441

CourtGeorgia Court of Appeals
Writing for the CourtDEEN; EBERHARDT, P.J., and CLARK
Citation127 Ga.App. 129,192 S.E.2d 544
PartiesBIBB COUNTY v. Sarah T. McDANIEL et al
Decision Date25 September 1972
Docket NumberNo. 47441,No. 3

Page 544

192 S.E.2d 544
127 Ga.App. 129
BIBB COUNTY

v.
Sarah T. McDANIEL et al.
No. 47441.
Court of Appeals of Georgia, Division No. 3.
Sept. 25, 1972.

[127 Ga.App. 132]

Page 545

Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Marion O. Gordon, G. Thomas Davis, Asst. Attys. Gen., Atlanta, for appellant.

J. M. Grubbs, Jr., Adele Platt, Marietta, for McDaniel.

Greene, Buckley, DeRieux & Jones, Burt DeRieux, Alfred B. Adams, III, Atlanta, for Southern R. Co.

Syllabus Opinion by the Court

[127 Ga.App. 129] DEEN, Judge.

1. The defendant Bibb County appeals from the denial of its motion to dismiss the complaint as to it, accompanied by a certificate as follows: 'The court hereby certifies that this ruling is of such importance that the court certifies it for immediate appeal to the appellate courts of this State.' This language is substantially that specified by Code Ann. § 6-701(a)(2) and the motion to dismiss the appeal is denied. State Highway Dept. v. Lord, 123 Ga.App. 178(1), 179 S.E.2d 780; Hodge v. Dixon, 119 Ga.App. 397, 167 S.E.2d 377 (dissent).

2. The plaintiff-appellee is the widow of the deceased McDaniel, a passenger in an automobile driven by the defendant Overton, both men being employees of the defendant Southern Railway Company. The petition expresses its intention of seeking recovery from the employer under the provisions of the Federal Employers' Liability Act, and alleges that the negligence of Overton, a fellow servant, in running off a highway combined with the negligence of the county in improper maintenance of a guardrail as part of an approach to a bridge located within the county. The county contends that the case is illegally proceeding against it because no joinder is permissible against is based on negligence resulting from the violation of a duty imposed on it by state law [127 Ga.App. 130] in conjunction with an action against the railroad based on F.E.L.A. statutes because the legal duties of these defendants toward the deceased are not the same. In support of this contention it cites Lee v. Central of Ga. R. Co., 147 Ga. 428, 94 S.E.2d 558, affd. 252 U.S. 109, 40 S.Ct. 254, 64 L.Ed. 482 where it was held that one could not join a defendant employer interstate carrier under F.E.L.A. with an employee train engineer because 'to join defendants in one suit they must owe the same duty.' The U.S. Supreme Court on certiorari affirmed on the sole basis that only a state procedural...

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4 practice notes
  • McDaniel v. Southern Ry. Co., Nos. 48328
    • United States
    • United States Court of Appeals (Georgia)
    • November 8, 1973
    ...to venue. These two grounds were ruled upon by the trial judge and denied. On appeal, this ruling was affirmed. Bibb County v. McDaniel, 127 Ga.App. 129, 192 S.E.2d 544. Cross appeals against each other were filed by Bibb County and Southern Railway Company. Bibb County then filed its motio......
  • Georgia Ports Authority v. Central of Georgia Ry. Co., No. 50709
    • United States
    • United States Court of Appeals (Georgia)
    • September 3, 1975
    ...was proper to sue both defendants in the same cause of action (Ga.L.1966, pp. 609, 631 (Code Ann. § 81A-120); Bibb County v. McDaniel, 127 Ga.App. 129, 131, 192 S.E.2d 544), but denies that the indemnity agreement, in the absence of express language to that effect, covered the special statu......
  • Clayton v. Edwards, No. A96A2165
    • United States
    • United States Court of Appeals (Georgia)
    • January 27, 1997
    ...used by the trial court substantially complies with the statute, and this appeal is therefore proper. See Bibb County v. McDaniel, 127 Ga.App. 129(1), 192 S.E.2d 544 (1972) (allowing appeal where substantial compliance with statute shown); State Hwy. Dept. v. Lord, 123 Ga.App. 178, 179(1), ......
  • Zayre of Georgia, Inc. v. Epps, No. 47418
    • United States
    • United States Court of Appeals (Georgia)
    • September 25, 1972
    ...561 127 Ga.App. 128 ZAYRE OF GEORGIA, INC. v. Mrs. R. B. EPPS. No. 47418. Court of Appeals of Georgia, Division No. 2. Sept. 25, 1972. [127 Ga.App. 129] Neely, Freeman & Hawkins, Albert H. Parnell, Atlanta, for Rubin, Landey & McLarty, Benjamin Landey, Atlanta, for appellee. Syllabus Opinio......
4 cases
  • McDaniel v. Southern Ry. Co., Nos. 48328
    • United States
    • United States Court of Appeals (Georgia)
    • November 8, 1973
    ...to venue. These two grounds were ruled upon by the trial judge and denied. On appeal, this ruling was affirmed. Bibb County v. McDaniel, 127 Ga.App. 129, 192 S.E.2d 544. Cross appeals against each other were filed by Bibb County and Southern Railway Company. Bibb County then filed its motio......
  • Georgia Ports Authority v. Central of Georgia Ry. Co., No. 50709
    • United States
    • United States Court of Appeals (Georgia)
    • September 3, 1975
    ...was proper to sue both defendants in the same cause of action (Ga.L.1966, pp. 609, 631 (Code Ann. § 81A-120); Bibb County v. McDaniel, 127 Ga.App. 129, 131, 192 S.E.2d 544), but denies that the indemnity agreement, in the absence of express language to that effect, covered the special statu......
  • Clayton v. Edwards, No. A96A2165
    • United States
    • United States Court of Appeals (Georgia)
    • January 27, 1997
    ...used by the trial court substantially complies with the statute, and this appeal is therefore proper. See Bibb County v. McDaniel, 127 Ga.App. 129(1), 192 S.E.2d 544 (1972) (allowing appeal where substantial compliance with statute shown); State Hwy. Dept. v. Lord, 123 Ga.App. 178, 179(1), ......
  • Zayre of Georgia, Inc. v. Epps, No. 47418
    • United States
    • United States Court of Appeals (Georgia)
    • September 25, 1972
    ...561 127 Ga.App. 128 ZAYRE OF GEORGIA, INC. v. Mrs. R. B. EPPS. No. 47418. Court of Appeals of Georgia, Division No. 2. Sept. 25, 1972. [127 Ga.App. 129] Neely, Freeman & Hawkins, Albert H. Parnell, Atlanta, for Rubin, Landey & McLarty, Benjamin Landey, Atlanta, for appellee. Syllabus Opinio......

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