Bibb County v. McDaniel, 47441
| Citation | 127 Ga.App. 129,192 S.E.2d 544 |
| Decision Date | 25 September 1972 |
| Docket Number | No. 47441,No. 3,47441,3 |
| Parties | BIBB COUNTY v. Sarah T. McDANIEL et al |
| Court | United States Court of Appeals (Georgia) |
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
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 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 question was raised by the decision, but commented that if the Supreme Court of Georgia had permitted the joinder 'we might have been required to determine whether, in view of the practice prevailing in Georgia, such decision would not impair the employer's opportunity to make the defenses to which it is entitled by the federal law.'
Since 1917 when the Lee case was decided our procedure has changed, and is now controlled by Code Ann. § 81A-120: All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences, and if and question of law or fact common to all of them will arise in the action. A. . . . defendant need not be interested in . . . defending against all of the relief demanded.' The cause of action posited certainly meets these specifications. In fact, it is interesting to note that in Way v. Waterloo, C.F. & N.R. Co., 239 Iowa 244, 29 N.W.2d 867, 174 A.L.R. 723, where in a petition filed jointly against the carrier under the F.E.L.A. and a truck driver colliding with the train based on common law principles, and where a motion for separate trial on behalf of the railroad was made and granted (Iowa statutory law being substantially similar to our Code § 81A-120, supra) the Iowa Supreme Court reversed, holding it immaterial that the liability of one defendant is based on common law rules while that of another is based on a federal statute, and observing: 'We have found no case where the right to sue in a single action, one joint tortfeasor under the Federal Employers' Liability Act...
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McDaniel v. Southern Ry. Co., s. 48328
...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......
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...it 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 st......
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