Georgia Power Co. v. Blum

• Decision Date: 23 November 1949
• Docket Number: No. 2,No. 32777,32777,2
• Citation: 80 Ga.App. 618,57 S.E.2d 18
• Parties: GEORGIA POWER CO. v. BLUM et al
• Court: Georgia Court of Appeals

Page 18

57 S.E.2d 18

80 Ga.App. 618

GEORGIA POWER CO. v. BLUM et al.

No. 32777.

Court of Appeals of Georgia, Division No. 2.

Nov. 23, 1949.

Rehearing Denied Dec. 14, 1949.

Syllabus by the Court.

1. The words 'joint trespassers' in the Constitutional provision that suits against joint trespassers residing in different counties may be tried in either county has reference to all joint tortfeasors. Cox v. Strickland, 120 Ga. 104, 47 S.E. 912, 1 Ann.Cas. 870; Southern Ry. Co. v. City of Rome, 179 Ga. 449, 176 S.E. 7. Where in a suit for damages occurring in Bibb County, a resident of Dooly County and an electric company are sued in the county of residence of such co-defendant, the venue is properly laid as against joint tort-feasors, and Code, § 94-1101 providing that suits against electric companies shall be brought in the county in which the injury occurred does not apply.

2. (a) Where certain conduct is alleged to be negligent, it is a jury question whether such conduct constitutes negligence if reasonable minds might differ upon the question. If the sole conclusion to be reached is that such acts do not amount to negligence, the court must so hold as a matter of law.

(b) Where the allegations, if supported by evidence, would authorize a jury to determine that negligence exists, then, in determining whether the same constitutes the proximate or concurrent proximate cause of the injury, no general rule can be laid down, but here, too, it is a jury question if reasonable minds might differ thereon. If the sole conclusion to be reached is that such acts are not the proximate or concurrent proximate cause of the injury, the court must so hold as a matter of law.

(c) As to third parties in suits against joint defendants, the act of one defendant is a concurrent proximate cause of the injury if, but for that act, the injury might reasonably be expected not to have occurred, and the commission by the co-defendant of acts of gross negligence would not necessarily and as a matter of lae constitute the sole proximate cause of the injuries.

3. (a) An allegation as to the knowledge of the defendant of a certain state of facts is not demurrable as a conclusion.

(b) One who himself violates a statute cannot rely upon the presumption that others in like position will not disobey the law, and special demurrers attacking allegations of negligence in failing to anticipate the negligence of others under such circumstances are without merit.

(c) The remaining grounds of special demurrer are also without merit.

Mrs. Anna K. Blum sued Dr. and Mrs. V. M. Waters and the Georgia Power Company for damages to her as a guest in the car of Dr. Waters resulting from a collision between the car in which she was riding and a passenger bus belonging to the Georgia Power Company. Venue was laid in the Superior Court of Dooly County, the county of residence of the Waters. The petition as amended alleged that the collision occurred in Bibb County when the car driven by Mrs. Waters ran into and against the rear of the bus which, in a suburb about a mile from the Macon city limits, stopped suddenly and withour warning to discharge a passenger. It alleged that Mrs. Waters was driving about 35 miles per hour, that the speed limit at that point was 30 miles per hour, that the road was approximately 22 feet wide with 6 feet of hard dirt shoulder on each side thereof and downgrade; that Mrs. Waters had been trailing the bus for a half mile or more, during which time it had stopped and started irregularly, that as she came down the hill she drove with undiminished speed into the rear of the bus; that for a second or two immediately preceding the impact she was gazing off at a 90~ angle away from the direction in which she was traveling; that as the bus driver applied his brakes large warning lights flashed sufficiently bright to cause an impression on her vision even at the angle at which her head was turned; that at this moment as the bus was stopping she was approximately 50 or 100 feet from it, but that she nevertheless pressed her automobile forward and into it; that there was no possibility of turning to the left on account of approaching traffic; that the bus was equipped with large rear view mirrors and the driver 'either negligently failed to make himself acquainted with the fact that the automobile was speeding toward the back end of his bus while he was suddenly stopping, or if he did or did not become aware of the conduct of Mrs. Waters he negligently failed to move his bus forward or to the right in order to avoid a collision.'

The acts of negligence alleged against the defendant Georgia Power Company are as follows: (a) That he brought his bus to a sudden and violent stop at said time and place; (b) That he failed to place said bus so that it would be at least eight feet removed from the center line of said highway, in violation of law; (c) That he failed to place said bus with its right side as near the right hand side of said highway as practicable, in violation of law; (d) failed to extend his hand and arm horizontally from and beyond the left side of said bus, in violation of law; (e) failed to anticipate that Mrs. Waters would violate traffic regulations while he himself was violating the law and (f) failed to move the bus forward to avoid the collision 'although he was either actually aware or could by the slightest degree of care make himself aware of her misconduct as alleged by the use of one of the three large mirrors described herein.'

The defendant bus company filed a plea to the jurisdiction and general and special demurrers. From the judgments of the trial court overruling the same it brings error.

Miller, Miller & Miller, Macon, for Georgia Power Co.

Davis & Friedin, Vienna, S. Gus Jones, Macon, for Anna K. Blum.

Harris, Harris, Russell & Weaver, Macon, for Dr. Waters.

TOWNSEND, Judge (after stating the foregoing facts.)

1. The defendant filed its plea to the jurisdiction alleging that the venue of this suit should be in Bibb County where the collision occurred, under Code, § 94-1101 providing that all actions for damages against electric companies must be brought in the county in which the cause of action originated and that 'any judgment rendered in any county other than the one herein designated shall be utterly void.' In an action for damages against a railroad, company and an employee thereof, brought in the county of residence of the latter, for an assault committed by an employee, it was held as follows: in Central of Georgia Railway Co. v. Brown, 113 Ga. 414, 38 S.E. 989, 84 Am.St.Rep. 250: 'A railroad company is liable as a trespasser to a passenger for an unjustifiable assault made upon him by the conductor of the train * * * and the courts of the county of the latter's residence have jurisdiction, under the provisions of paragraph 4 of section 16 of article 6 of the constitution of this state [Const.1945, art. 6, § 14, par. 4, Code, § 2-4904] to try and determine a joint suit against them, although such county is not the county in which the cause of action originated, nor the county of the residence of the railroad company.'

It is contended, however, that the only acts of negligence alleged against the defendant are negligent failure to exercise due care in certain particulars, and that none of these acts of nonfeasance amounts to a trespass against the plaintiff. That one who parks an automobile which becomes involved in a collision is not guilty of a trespass has frequently been held in Texas, and the defendant relies strongly on this line of decisions. Examination thereof, however, indicates that the cases cited arose under Tex.Rev.St. art. 1995(9), Vernon's Ann.Civ.St. art. 1995, subd. 9, fixing venue in the common law action of trespass, and did nit involve cases of joint defendants, which are covered by Tex.Rev.St. art. 1995(4), allowing suits in such cases to be brought in the county of residence of either defendant. This latter principle thus established by statute in Texas has in Georgia been similarly established by judicial decision. In Cox v. Strickland, 120 Ga. 104, 47 S.E. 912, 914, 1 Ann.Cas. 870, interpreting the Constitutional venue provision as to joint trespassers it was held that it 'evidently intended to declare what might be the venue in suits where persons were jointly liable for a tort'. On the authority of the Cox case it was held in Albany Coca-Cola Bottling Co. v. Shiver, 6o Ga.App. 775, 12 S.E.2d 114, 116, that 'joint tort-feasors may be sued together in the county in which either one resides.' There is no distinction between torts of misfeasance and torts of nonfeasance, so far as the venue provision is concerned. See also Southern Ry. Co. v. City of Rome, 179 Ga. 449, 176 S.E. 7, 11, where the Supreme Court, on the same authority, reversed a decision of the Court of Appeals with the statement that 'In this state 'tort' and 'trespass' are treated as interchangeable terms.' It might be added that if this suit were brought in Bibb County the co-defendants, Dr. and Mrs. Waters, could not be joined, as the county where the cause of action arose does not happen to be the county of residence of any defendant, and for this additional reason the venue was properly laid.

The grant of a motion to strike the plea to the jurisdiction was therefore without error.

2. The defendant Georgia Power Company filed general demurrers on the grounds that: (1) the petition set out no cause of action as to it; (2) the negligence of Mrs. Waters was the proximate and sole proximate cause of the injury; (3) Mrs. Waters could, in the exercise of ordinary care, have avoided the injury.

We eliminate from this discussion all cases not involving guests charging concurring negligence against joint defendants, and also all cases where the acts of negligence charged are not sufficient to constitute negligence per se or common law negligence, as well as all cases involving directed verdicts...