Byne v. Mayor, etc. of City of Americus
| Decision Date | 15 April 1909 |
| Docket Number | 1,378. |
| Citation | 64 S.E. 285,6 Ga.App. 48 |
| Parties | BYNE v. MAYOR, ETC., OF CITY OF AMERICUS. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Where a judgment for damages has been recovered against a municipality for negligence in permitting a dangerous obstruction to be erected and maintained in the street, and the owner of the abutting property, who erected and maintained the obstruction has been duly and timely vouched into court to defend the suit, in a suit by the municipality over against the vouchee, the judgment against the former is conclusive against the latter as to the right of the injured party to recover the amount of the verdict, and as to all defenses that either the municipality or the party vouched could have set up in the first suit, and which were actually set up and passed upon in that suit.
[Ed Note.-For other cases, see Indemnity, Cent. Dig. § 41; Dec Dig. § 14. [*] ]
While a person injured by an unsafe obstruction placed over the sidewalk by an owner of abutting property may have a right of action against the city for negligence in allowing the obstruction on the sidewalk, this does not affect the liability of the owner responsible primarily for such obstruction. The owner's liability arises from his negligent conduct in erecting and maintaining the dangerous obstruction on the sidewalk. The city's liability arises from its negligence in not keeping its sidewalks in a safe condition. A party injured by such obstruction has a right of action against either the owner or the city, or both; and, if the city is forced to pay for the injury caused by the obstruction, it ordinarily has a right of action over against the owner.
[Ed Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1684-1687, 1690-1694; Dec. Dig. § 808; [*] Indemnity, Cent. Dig. § 29; Dec. Dig. § 13. [*]]
The owner of property is liable for injuries caused by defective repairs made by the tenant in possession, where the law imposes upon the owner the duty of making such repairs, or where the tenant is authorized by the owner to make the repairs.
No error of law appears, and the verdict is supported by the evidence.
Error from City Court of Albany; D. F. Crosland, Judge.
Action by the Mayor and Councilmen of the City of Americus against Mrs. G. V. Byne. Judgment for plaintiff, and defendant brings error. Affirmed.
The plaintiff in error was the owner of a building in the city of Americus, to which was attached a wooden shed or awning extending on and above the sidewalk. On December 22, 1905, a runaway mule hitched to a wagon ran against one of the posts of the shed or awning, knocking it out of place, and on instructions from the chief of police of the city the agent of the plaintiff in error who had the property in charge repaired the shed or awning, and on inspection by the chief of police it appeared to be in a safe condition. On the following day, without any cause so far as the evidence discloses, the shed or awning fell upon the sidewalk, injuring several persons, one of whom was the minor son of Henry Martin. Henry Martin, as next friend for his minor son, brought suit against the mayor and council of the city of Americus to recover damages sustained by him from the falling of the shed or awning, alleging that it was in a dangerous condition and likely to fall, which condition was known to the city, and charging that the city was negligent in allowing the shed to remain in a dangerous condition on and over the sidewalk of the city. The city served the plaintiff in error, as the owner of the building in question and the shed or awning attached, with timely notice of the filing of this suit, vouching her into court to defend the same. This she declined to do. The city of Americus defended the suit, and the trial resulted in a verdict against it for $300, which was fully paid and discharged by the city. The city brought suit against the plaintiff in error to recover from her the amount paid out by it on account of the judgment, and on the trial of this case a verdict was rendered in favor of the city. The defendant excepts to the judgment overruling her motion for a new trial.
S. J. Jones, for plaintiff in error.
Maynard & Hooper and Pope & Bennet, for defendant in error.
Under the above statement of facts, section 5234 of the Civil Code of 1895 entitled the city to a judgment against the plaintiff in error as the owner of the property, if she was in fact negligent in the construction of the shed or awning or was negligent in maintaining it in an unsafe condition. This section makes the judgment rendered against the city in the suit to recover damages, if the owner of the property which caused the damage has been duly vouched into court conclusive against the owner so vouched as to the amount and right of the plaintiff to recover in the suit against the city. As stated by Judge Powell in McArthor v. Ogletree, 4 Ga.App. 429, 61 S.E. 859, this section of the Code is merely declaratory of the principle announced by the Supreme Court in the case of Western & Atlantic R. Co. v. Atlanta, 74 Ga. 774, which decision itself follows the decision of the Supreme Court of the United States in the case of Chicago v. Robins, 2 Black, 418, 17 L.Ed....
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Byne v. Mayor
...64 S.E. 285(6 Ga. App. 48)BYNE.v.MAYOR, ETC., OF CITY OF AMERICUS.(No. 1, 378.)Court of Appeals of Georgia.April 15, 1909. 1. Indemnity (§ 14*) — Conclusiveness — Persons Concluded — Persons Vouched into Court. Where a judgment for damages has been recovered against a municipality for negli......