Joyce v. City Of Dalton
| Decision Date | 17 October 1945 |
| Docket Number | Nos. 30988, 31004.,s. 30988, 31004. |
| Citation | 36 S.E.2d 104 |
| Parties | JOYCE et al. v. CITY OF DALTON et al. CITY OF DALTON et al. v. JOYCE et al. |
| Court | Georgia Court of Appeals |
Rehearing Denied Nov. 27, 1945.
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Syllabus by the Court.
1. Joint tort-feasors may be sued either jointly or severally; and if sued jointly the jury may find against one and relieve another, as the evidence may authorize.
2. A charge is proper if there is any evidence authorizing it.
3. Whether a particular and unusual occurrence is an act of God, as defined in Code, section 102-103, such as to relieve a defendant from liability, is a question for the jury to decide under proper instructions from the court.
4. The evidence authorized the verdict, and the court did not err in overruling the motions for new trial.
Error from Superior Court, Whitfield County; J. M. C. Townsend, Judge.
Action by Walter L. Joyce, Jr., individually and as next friend of Charles Joyce and another, minors, against the City of Dalton and Myra M. Anderson, for the death of Annie Louis Joyce as the result of the fall of a shed attached to a building owned by defendant Anderson. Verdict for plaintiffs against defendant city only, and to review a judgment overruling plaintiffs' and defendant city's motions for new trial, they bring error.
Affirmed.
Stafford Brooke and R. Carter Pittman, both of Dalton, for plaintiffs in error.
R. Carter Pittman, D. W. Mitchell, and C. H. Dalton, all of Dalton, for defendants in error.
This is the third appearance of one or both of these cases in this court. See City of Dalton v. Joyce, 70 Ga.App. 557, 29 S.E. 2d 112, where the facts are fully stated and where it was held that the petition set out a cause of action; and City of Dalton v. Anderson [Joyce v. City of Dalton], 72 Ga.App. --, 33 S.E.2d 115, in which the trial court was reversed because of errors in the charge. The last trial resulted in a verdict in favor of the plaintiffs and against the City of Dalton, but not against Mrs. Anderson. The plaintiffs and the City of Dalton filed separate motions for new trial, and the exceptions are to the overriding of those motions. The cases will be considered together as several of the assignments of error in both cases are alike.
1. The plaintiff in error in each case complains because the court charged the jury that they might find for the plaintiff "against said defendants, or either or both of them whose negligence you find to be the proximate cause of such death, if either or both". The objections to this charge are that it was not authorized nor applicable to the issues in that the City of Dalton could not be held liable for failing to keep its streets and sidewalks in a reasonably safe condition, for use by the public, as required by law, unless the jury also found that Mrs. Anderson was negligent in maintaining the shed which extended over the sidewalk in a defective condition; and that a verdict either for or against both defendants was demanded under the law and evidence.
Assuming but not deciding that the degree of care required of each defendant was the same, still the jury was authorized to find against one defendant and in favor of the other, if the evidence justified such finding. "Several persons acting independently, but causing together a single injury, are joint tort feasors, and may be sued either jointly or severally." American Agricultural Chemical Corporation v. Jordan, 48 Ga.App. 493, 173 S.E. 488, 490; Southeastern Greyhound Lines v. Estes, 68 Ga.App. 248(2), 22 S.E.2d 679.
"A plaintiff can sue one or more than one, or he can sue all, of several joint tortfeasors in the same action, and the jury, by its verdict, can bind one and relieve another, as the evidence may authorize." Finley v. Southern Ry. Co., 5 Ga.App. 722 (3), 64 S.E. 312, 313; Council v. Nunn, 41 Ga.App. 407, 411, 153 S.E. 234. "There may, in an action against joint tort feasors, be a lawful recovery against one only of them." Hollingsworth v. Howard, 113 Ga. 1099(2), 39 S.E. 465.
The plaintiff's evidence showed that employees of the City of Dalton had gone upon the shed a number of times for the purpose of putting up and taking down Christmas lights, for several years beforeit fell, the last time being in January, 1942. Testimony for the plaintiffs as well as evidence in behalf of Mrs. Anderson showed that she was not consulted by the city or its employees about going upon the shed, and that the lights were put up and taken down without her knowledge. While the employees of the city did not see anything that would indicate that the shed was in bad repair, the evidence authorized the inference that in going upon the shed they may have weakened the chains supporting it, thus tending to cause it to fall. It appears that those putting up the lights inspected the shed to determine whether they could safely go upon it, and looked at the chains holding up the shed, and were not able to see anything wrong with the chains or any part of the shed that would render it unsafe. The only other inspections shown by the evidence to have been made by the City of Dalton were made by its building inspector who didn't go up on the shed but "passed by it, (and) looked at it from the ground". The last inspection in this manner was "about a week or ten days" before the shed fell. The City of Dalton offered no evidence in its behalf. The testimony of witnesses for Mrs. Anderson showed that she did not construct the building, but that she acquired it in an alimony settlement with her husband in 1940; that the building was occupied at all times by tenants holding under a lease from her husband; that no one ever reported to Mrs. Anderson, or her daughter who managed her property for her, any defect in the shed. The tenants notified Mrs. Anderson's daughter of a leak in the roof of the main building, and in repairing it the shed was re-roofed also. The daughter of Mrs. Anderson testified that from time to time she looked at the building and the shed "in a manner of inspecting it to see how the condition of the property was, " and that she had the shed inspected by a carpenter who worked on the main roof of the building; that her last inspection of the shed was a week before it fell, and that she looked at everything about it, and examined the chains by observation, and it appeared to be all right. A contractor who repaired the roof of the shed for Mrs. Anderson, after she had acquired the property, testified that he examined the chains supporting the shed, while on the roof, by taking hold of them and shaking them up and down, and they appeared all right and to be in good shape. A carpenter who re paired the roof of the main building at a later date saw the chains and saw nothing wrong with them although he made no real inspection of the shed. He testified that if one of the lap links had been spread much he would have noticed that, but he didn't notice anything wrong with them.
This Court held when these cases were before it on a previous appeal that "Mrs. Anderson was under a duty to exercise ordinary care in making reasonable inspection of the building, and in repairing the defects discovered or which she by the exercise of ordinary care should have discovered, " and that "The question as to the city was whether it had failed to obey a duty imposed on it by a higher power, the State, to wit, the duty to keep its streets and sidewalks in a reasonably safe condition." See City of Dalton v. Anderson, and Joyce v. City of Dalton, supra. The general rule is that a municipality is bound to keep its streets in a reasonably safe condition for travel by the ordinary modes, and will be liable for damages for injuries caused by reason of its failures in this respect, no matter by what cause the street may have become defective or unsafe by reason of an obstruction, where the city knew or should have known of the defect or obstruction in time to repair or remove it or give warning of its existence. See City of Rome v. Brinkley, 54 Ga.App. 391, 187 S.E. 911, and citations: "It is a jury question as to what length of time a defect (or an obstruction) in a street must exist to charge a municipality with knowledge of negligence." City of Rome v. Brooks, 7 Ga.App. 244, 66 S.E. 627. It is a well-settled principle that, except in plain and unmistakable cases, all questions as to diligence and negligence are for the jury to decide. Southern Rwy. Co. v. Slaton, 41 Ga. App. 759(3), 154 S.E. 718, with numerous citations. Whether Mrs. Anderson exercised ordinary care in making reasonable...
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