Doak v. City of Claxton, 53074
| Decision Date | 30 November 1976 |
| Docket Number | No. 1,No. 53074,53074,1 |
| Citation | 140 Ga.App. 588,231 S.E.2d 538 |
| Parties | P.J. DOAK v. CITY OF CLAXTON |
| Court | Georgia Court of Appeals |
Milton A. Carlton, J. Franklin Edenfield, Swainsboro, for appellant.
Findley & Callaway, James E. Findley, Claxton, for appellee.
Mr. Doak sustained injuries in an explosion while employed at a chicken processing plant supplied with natural gas by the City of Claxton. He filed one action for damages against the City in the Superior Court of Evans County, based on negligence in the operation and maintenance of the supply of natural gas to the plaintiff's employer. He filed a second action against the City in the United States District Court of the Southern District of Georgia, in which he alleged substantially the same negligence as in his state court action, with the addition of an allegation of negligence per se in the violation of the provisions of the 1968 Natural Gas Pipeline Safety Act (49 U.S.C. § 1677). The federal court sustained the City's motion to dismiss for want of federal jurisdiction, holding in the order of dismissal that the particular Act on which the action was based does not permit a private remedy for its violation, and noting the pendency of the plaintiff's action in the state court. Doak v. City of Claxton, 390 F.Supp. 753 (S.D.Ga.1975). This order was not appealed.
Subsequent to the dismissal of his action in federal court, Doak amended his action in superior court, alleging as a second count the allegations which had been contained in the complaint in his federal court action. The trial judge sustained the defendant City's motion to strike Count 2, and after the jury rendered a verdict in favor of the City on Count 1, he entered judgment thereon and overruled the plaintiff's motion for new trial. The plaintiff appealed from the above adverse rulings. Upon notice of the appellant's death, this court granted the motion of his executor to be made the party appellant in the case. Held:
The order in the federal case did not hold, as the appellant contends, merely that there is no private remedy in federal courts for violation of the above mentioned federal Act. Rather, it held that, with respect to this particular Act at least, no private remedy exists, in federal or state courts, based upon negligence per se, and that the plaintiff's remedy lay in an action in the state court, based upon the breach of a duty created by statutory or common law, rather than by the federal Act. (Such an action was brought in Count 1 here and decided adversely to the appellant.). This order, unappealed from, is res judicata as to Count 2 of the present state court action. For a ruling to the same effect by the Supreme Court see Cort v. Ash, 422 U.S. 66(III), 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975).
The case of Shellenberger v. Tanner, 138 Ga.App. 399, 227 S.E.2d 266, cited by the appellant, is not authority to the contrary. In that case, this court held that the allegations of the complaint were sufficient 'notice pleading' to state a cause of action in...
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Claxton Poultry Co., Inc. v. City of Claxton
...court affirmed the trial court's denial of summary judgment. For a companion case, reference is here made to Doak v. City of Claxton, 140 Ga.App. 588, 231 S.E.2d 538 (1976), in which this court affirmed the judgment in favor of the defendant City of Claxton in which one of the employees of ......
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