Lincoln County v. Gazzaway

• Citation: 43 Ga.App. 358,158 S.E. 647
• Decision Date: 15 May 1931
• Docket Number: No. 20918.,20918.
• Parties: LINCOLN COUNTY. v. GAZZAWAY.
• Court: United States Court of Appeals (Georgia)

43 Ga.App. 358

158 S.E. 647

LINCOLN COUNTY.

v.GAZZAWAY.

No. 20918.

Court of Appeals of Georgia,

Division No. 2.

May 15, 1931.

Syllabus by Editorial Staff.

Error from Superior Court, Lincoln County; C. J. Perryman, Judge.

Action by J. L. Gazzaway against Lincoln County. Judgment for plaintiff, and defendant brings error.

Reversed.

J. D. Kilpatrick, of Atlanta, J. B. & T. R. Burnside, of Thomson, and S. M. Mathews, of Ft. Valley, for plaintiff in error.

Clement E. Sutton, of Washington, Ga., for defendant in error.

Syllabus Opinion by the Court.

JENKINS, P. J.

1. Under the provisions of the act for the reorganization of the state highway department, approved August 18, 1919 (Ga. Laws 1919, pp. 242, 248, 249, § 2, provision 5; Michie's Code 1926, § 828 (19), provision 5), when any portion of the state-aid road system is taken under the jurisdiction of the state highway department, the duty of the county to levy taxes for the construction and maintenance of any such road ceases, but the liability of the county for damages under existing law is continued, and it becomes the duty of the state highway department to de-fend any suit for damages brought against the county whenever the cause of action originates on a highway taken under the jurisdiction of the highway department, provided the highway department is vouched into court by the county, in the manner provided in the act; and, when the highway department is thus vouched into court, it becomes responsible for the damages awarded against the county. The provisions of this section of the act of 1919 operate to fix the situs of litigation on account of claims against the highway department, in suits against the county as defendant, for any cause for which a county is liable to suit under existing law, originating on a highway taken over by the highway department, in the county in which such highway is situated, and to provide a method by which service of any such suit against the county may be made upon the highway department so as to establish jurisdiction for the determination of such cause, as against the highway department, but proceeding against the county as defendant, in the courts of the county in which the highway upon which the cause of action originated is situated. The fact that by the terms of the act of 1925 (Ga. Laws 1925, pp. 208, 211, Michie's Code 1926, § 828 (4), the highway department is in general terms empowered to sue and made subject to suit generally does not operate to repeal or invalidate a proceeding of the particular nature and character authorized by the act of 1919, instituted in accordance with the particular method prescribed therein.

(a) Thus, where an injury was sustained by reason of the alleged defective condition of a bridge situated upon a state-aid road taken under the jurisdiction of the highway department, since the county would be liable to suit therefor under existing law (Civil Code of 1910, § 748), the action of the person injured was properly brought against the county as party defendant, and, when the state highway department was vouched into court, as provided by the act of 1919 cited above, it became responsible for any damages awarded against the county.

(b) Under the foregoing rulings, the court did not err in overruling the general demurrer interposed in the instant case.

2. It is the duty of the county authorities to construct and maintain bridges across streams in a workmanlike and proper manner, so that any person may use them in safety, in ordinary travel (Civil Code of 1910, § 748; Tattnall County v. Newton, 112 Ga. 779, 38 S. E. 47; Stamps v. Newton County, 8 Ga. App. 230 (5), 68 S. E. 947), and "a traveler on the public highway, exercising due care, although he knows there is some danger in driving over a defective bridge, may recover for injuries thus sustained, unless the danger is obviously of such a character that driving over the bridge, in and of itself, amounts to a want of ordinary care." Elbert County v. Threlkeld, 145 Ga. 133 (1), 88 S....