Gazaway v. Nicholson

• Citation: 9 S.E.2d 154,190 Ga. 345
• Decision Date: 23 May 1940
• Docket Number: 13177.
• Parties: GAZAWAY et al. v. NICHOLSON et al.
• Court: Supreme Court of Georgia

9 S.E.2d 154

190 Ga. 345

GAZAWAY et al. v. NICHOLSON et al.

No. 13177.

Supreme Court of Georgia

May 23, 1940

Syllabus by the Court.

1. A child who with other children was regularly transported to and from school in a school bus recovered a verdict against the proprietor of the bus, his employee operator, and another person, for personal injuries alleged to have resulted from negligence of the defendants. The case is before this court on certiorari to review a decision of the Court of Appeals affirming a judgment refusing to grant a new trial on motion of the proprietor and the driver. Held, that there was no error in affirming the judgment, so far as related to the general grounds of the motion for new trial.

2. A charge to the jury that if they found the defendants liable they would not be authorized to return a verdict for different amounts against the respective defendants, even if they should find that the negligence of one was greater than the negligence of another, but should in such case return a verdict in one amount against all of them, was properly held by the Court of Appeals not to be erroneous as contended in the motion for new trial.

3. Except for the questions dealt with in division 2 of this decision, this was not a case for certiorari.

R Carter Pittman and Jack B. Ray, both of Dalton, for plaintiffs in error.

Wm E. Mann, W. G. Mann, D. W. Mitchell, and W. M. Henderson, all of Dalton, and Silas Williams, of Chattanooga, Tenn., for defendants in error.

BELL Justice.

1. A child who with other children was regularly transported to and from school in a school bus recovered a verdict against the proprietor of the bus, the person who was operating it for him, and another, for personal injuries alleged to have resulted from negligence of the defendants. The case is before this court on certiorari to review a decision of the Court of Appeals affirming a judgment refusing to grant a new trial on motion of the proprietor and the driver. For that decision and a statement of the facts, see Gazaway v. Nicholson, 61 Ga.App. 3, 5 S.E.2d 391. The petition for certiorari, brought by the proprietor of the school bus and his driver, does not raise any question as to whether the proprietor of the school bus was a common carrier, or as to whether any duty prescribed by statute was violated by the driver. Consequently, no decision can properly be made on either of these questions. But on the general subject see Roberts v. Baker, 57 Ga.App. 733, 196 S.E. 104; Burnett v. Allen, 114 Fla. 489, 154 So. 515; Bagdad Land & Lumber Co. v. Boyette, 104 Fla. 699, 140 So. 798; Pendarvis v. Pfeifer, 132 Fla. 724, 182 So. 307; Archuleta v. Jacobs, 43 N.M. 425, 94 P.2d 706; 4 Blashfield on Automobile Law and Practice, Permanent Edition, 1935, § 2177. In the petition for certiorari error was assigned on the following excerpt from the decision of the Court of Appeals [61 Ga.App. 3, 5 S.E.2d 397]: 'In the present case should the driver, knowing the dangers incident to the passing of automobiles on the highway, have ascertained the location of the plaintiff's home and have driven his bus on the other side of the highway so that the young boy could have alighted where he would not have to hazard the highway? Was the place where he was in fact allowed to alight a place of safety for one of his years? Was the driver under the circumstances of the case negligent? If so, his employer Gazaway was also liable for his negligence. These questions were all for the determination of the jury, and under the evidence we think that they were authorized to find that the driver of the bus was negligent, and that his negligence concurred with that of the driver of the automobile in proximately causing the injury and damage to the plaintiff. Consequently, it follows that the court did not err in overruling the general grounds of the motion for new trial.'

The assignments of error upon the foregoing excerpt merely stated in various forms that the evidence failed to show that in the circumstances the defendants were guilty of any acts or omissions amounting to negligence for which they could be held liable, but on the contrary showed without dispute that the defendants were not negligent as alleged. The Court of Appeals did not err, for any reason assigned, in affirming the judgment overruling the general grounds of the motion for new trial.

2. The suit being an action against the proprietor, his driver, and another, to recover damages for personal injuries, a charge to the jury that if they found the defendants liable they would not be authorized to return a verdict for different amounts against the respective defendants, even if they should find that the negligence of one was greater than the negligence of another, but should in such case return a verdict in one amount against all of them was properly held by the Court of Appeals not to be erroneous as contended in the first special ground of the motion for new trial, dealt with in division 3 of the decision under review. The Code, § 105-2011, provides that where several trespassers are sued jointly, the jury may in their verdict specify the particular damages to be recovered of each. In several decisions by this court it has held this section has no application to an action for damages for personal injuries, but applies only to trespass on property. McCalla v. Shaw, 72 Ga. 458; Hunter v. Wakefield, 97 Ga. 543, 25 S.E. 347, 54 Am.St.Rep. 438; Glore v. Akin, 131 Ga. 481, 62 S.E. 580. Each of these decisions was concurred in by all the justices, and the statements contained therein as to the meaning of the foregoing section were not obiter dicta as here contended. To the same effect, see Hay v. Collins, 118 Ga. 243, 44 S.E. 1002, decided by five justices, and Lee v. Central of Georgia Railway Co., 147 Ga. 428, 94 S.E. 558, 13 A.L.R. 156, by four justices, but in which latter case the statement may have been obiter. The decision in Cox v. Strickland, 120 Ga. 104, 47 S.E. 912, 1 Ann.Cas. 870, considered the word 'trespass' only in connection...