City of Dalton v. Joyce
| Decision Date | 02 February 1944 |
| Docket Number | 30307. |
| Citation | 29 S.E.2d 112,70 Ga.App. 557 |
| Parties | CITY OF DALTON v. JOYCE et al. |
| Court | Georgia Court of Appeals |
W G. Mann, of Dalton, for plaintiff in error.
Stafford Brooke and R. Carter Pittman, both of Dalton, and Graham Wright, of Rome, for defendants in error.
Walter L. Joyce, Jr., in his own right and individually, and as father and next friend of Charles Joyce and Barbara Ann Joyce, sued the City of Dalton and Mrs. Myra M. Anderson for damages on account of the death of Annie Louis Joyce. The petition, as amended, was brought in two counts. Count one as amended, alleged in substance, that Walter L. Joyce, Jr. was the husband, and Charles Joyce, who was 17 years of age and Barbara Ann Joyce, who was 3 years of age, were the only issue of the marriage of Walter L. Joyce, Jr., and Annie Louis Joyce; that on March 12, 1943, and for nearly three years prior thereto, Mrs. Myra M. Anderson, with the permission of the City of Dalton, maintained a wood and metal shed or awning over South Hamilton Street in the City of Dalton; that this shed or awning was attached to a building owned by Mrs. Myra M. Anderson abutting on said street; that the shed or awning extended approximately ten feet over the street and sidewalk and was improperly constructed in that the chains which supported it were too small or light to support the weight of the shed or awning; that the chains were fastened with lap links which would spread under the weight of the shed and were attached to the building at an improper angle; that the wood of the building to which the chains were attached had become rotten and the nails therein had become loose and in a weakened condition; that the shed or awning was maintained over the street and sidewalk in an unsafe, defective, and dangerous condition, and that the defendants knew, or in the exercise of ordinary care should have known, of the dangerous, defective, and unsafe condition of said shed or awning; that an ordinance of the City of Dalton, a copy of which was attached to the petition as an exhibit, provided for the appointment of a building inspector to inspect buildings, awning, and sheds within the city, and to condemn them, if they became a menace; that the defendants were negligent in not inspecting said shed or awning, or if they inspected it, they were negligent in not finding the dangerous, defective, and unsafe condition of the same; that the City of Dalton was negligent in that it failed to exercise ordinary care to keep South Hamilton Street and the sidewalk thereon at said location in a reasonably safe condition for travel in the ordinary modes; that on March 12, 1943, Annie Louis Joyce, without any knowledge of the condition of said shed or awning, was traveling along the sidewalk on said street, and when she reached a point immediately under said shed or awning, it suddenly fell upon her, and inflicted injuries to her from which she died; that the concurring acts of negligence of the defendants in allowing said shed or awning to remain over South Hamilton Street in a dangerous, defective, and unsafe condition was the direct and proximate cause of the death of Annie Louis Joyce; that at the time of her death, she was 37 years of age with a life expectancy of 33 years; that the full value of her life was $35,000, and the necessary expenses of her funeral were $490; that notice of plaintiffs' claim against the City of Dalton was duly filed with said city, a copy of the notice being attached to the petition as an exhibit; judgment was sought against the defendants in the amount of $35,000.
Count two of the petition, as amended, in addition to the above allegations as to the relationship of the parties, and the value of the decedent's life, alleged, in substance, that the defendants failed to exercise ordinary care in inspecting said shed or awning to ascertain if it was in a safe condition as required by an ordinance of the City of Dalton, a copy of which was attached as an exhibit to the petition; that although the building inspector of the City of Dalton had inspected said shed or awning, he failed to go upon same and inspect the chains supporting it as required by said city ordinance; that both defendants had inspected said shed or awning, that they failed to make a proper inspection, and failed to exercise ordinary care in the selection of their agents to inspect said shed or awning; that said shed or awning, on account of its unsafe, defective, and dangerous condition, was a nuisance which was maintained by Mrs. Myra M. Anderson, with the knowledge of the City of Dalton, over said street and sidewalk.
The City of Dalton demurred to the petition upon several grounds, but only the following grounds were insisted upon and argued in the brief of counsel for the plaintiff in error: (1) That the petition, as amended, set out no cause of action against the City of Dalton; (2) that there was a misjoinder of parties defendant in the same count; (3) that the petition, and count two of same, were multifarious; (4) and that there was a misjoinder of causes of action in that the same was in tort against an individual, Mrs. Myra M. Anderson, and a municipality, the City of Dalton.
The judge overruled the demurrer, and the City of Dalton excepted to that judgment.
1. The petition as amended set out a cause of action as against the City of Dalton. The action was brought by the husband and children of the decedent to recover the full value of the life of Annie Louis Joyce, whose death, it was alleged, was the result of the negligence of the defendants. Code, § 105-1306. The petition alleged that notice of the plaintiffs' claim had been duly filed with the municipality as required by the Code, § 69-308, and a copy of the notice was attached to the petition as an exhibit. The fact that the claim filed with the municipality stated that the plaintiffs claimed "$35,000 from said municipality," and the action was filed jointly against the municipality and an individal, is...
To continue reading
Request your trial
-
Floyd v. City of Albany, 39108
...of Atlanta, 92 Ga. 623, 628, 18 S.E. 1013; Brown v. Mayor & Aldermen of Milledgeville, 20 Ga.App. 392, 93 S.E. 25; City of Dalton v. Joyce, 70 Ga.App. 557, 561, 29 S.E.2d 112. The charge complained of was reversible 10. Ground 19 complains that the court charged the jury as follows: 'Count ......
-
City of Bainbridge v. Cox, 33247
...v. Sappington, 58 Ga.App. 27, 29, 197 S.E. 342, 344; City of Rome v. Brinkley, 54 Ga.App. 391(2), 187 S.E. 911; City of Dalton v. Joyce, 70 Ga.App. 557, 29 S.E.2d 112; City of Rome v. Hanson, 58 Ga.App. 617(1), 199 S.E. 329. While it is true that a 'city would not be liable for the existenc......
-
Shepherd v. Amos
...there was a misjoinder of parties defendant and that the petition was multifarious.' City of Dalton v. Joyce, 70 Ga.App. 557(2, 3), 29 S.E.2d 112, 113. Also, see v. Mayor, etc., of Gainesville, 33 Ga.App. 411, 126 S.E. 883, and citations; Longino v. Moore, 53 Ga.App. 674, 187 S.E. 203; Spra......
-
City Council of Augusta v. Hammock
...v. Sappington, 58 Ga.App. 27, 29, 197 S.E. 342, 344; City of Rome v. Brinkley, 54 Ga.App. 391(2), 187 S.E. 911; City of Dalton v. Joyce, 70 Ga.App. 557, 29 S.E.2d 112; City of Rome v. Hanson, 58 Ga.App. 617(1), 199 S.E. 329. While it is true that a 'city would not be liable for the existenc......