Norris v. State Highway Dep't

• Decision Date: 17 February 1931
• Docket Number: No. 20537.,20537.
• Citation: 42 Ga.App. 699,157 S.E. 382
• Parties: NORRIS. v. STATE HIGHWAY DEPARTMENT et al.
• Court: Georgia Court of Appeals

42 Ga.App. 699

157 S.E. 382

NORRIS.

v.STATE HIGHWAY DEPARTMENT et al.

No. 20537.

Court of Appeals of Georgia, Division No. 2.

Feb. 17, 1931.

Syllabus by the Court.

The instant suit against the state highway department and Meriwether county having been brought in the superior court of Meriwether county, upon the theory that the state highway department was a nonresident, but that the suit was maintainable in that county because the defendants were joint wrongdoers, and the evidence having failed to show any liability on the part of the county, the action was not maintainable against the state highway department, and the court properly awarded a nonsuit as to both defendants.

Syllabus by the Court.

The court did not err in refusing to admit in evidence certain resolutions of the board of county commissioners of Meriwether county tending to indicate that the state highway department was made the agent of the county to do the construction work alleged to have resulted in the damage complained of. The road having been made a part of the state system, the work done thereon by the state highway department was necessarily performed by it as principal and not as agent for the county.

Error from Superior Court, Meriwether County; C. E. Roop, Judge.

Suit by W. S. Norris against the State Highway Department and another. To review a judgment of nonsuit, plaintiff brings error.

Affirmed.

J. P. Hatchett and W. S. Allen, both of Greenville, for plaintiff in error.

N. F. Culpepper, of Greenville, for defendants in error.

BELL, J.

W. S. Norris brought suit against Meriwether county and the state highway department, in the superior court of Meriwether county, to recover for damages to the plaintiff's land resulting from the improper construction of certain culverts on state route No. 41, in that the water of a certain creek was caused to pond upon the plaintiff's land and to destroy its usefulness for the purpose of agriculture. The petition was drawn upon the theory that the highway, including the culvert in question, was constructed jointly by the county and the state highway department, and that they were liable as joint wrongdoers. The petition alleged that the state highway department is a department of the state of Georgia, with the right and power to be sued, and that its principal office is in Fulton county. At the close of the evidence, the court granted a nonsuit as to both defendants, and the plaintiff excepted.

We think the court properly awarded the nonsuit There was no evidence whatever that the county was a party to the construction of the highway or the culverts, and the evidence therefore failed to show that the county was liable. The plaintiff having brought the suit in Meriwether county against the state highway department as a nonresident, and having sought to establish the jurisdiction of the court over this defendant by alleging that the wrongs complained of were committed jointly by this defendant and the resident defendant, to wit, Meriwether county, it was necessary to show the resident defendant liable in order to maintain the suit in that county against the nonresident defendant; and, the evidence failing to establish this fact, the nonsuit was properly granted as to both defendants. Central of Georgia Ry. Co. v. Brown, 113 Ga. 414 (3), 38 S. E. 989, 84 Am. St. Rep. 250; Flemming v. Drake, 163 Ga. 872 (3), 137 S. E. 268; Christian v. Terry, 36 Ga. App. 815 (1), 138 S. E. 244; Williams v. Atlanta National Bank, 31 Ga. App. 212 (5), 220, 120 S. E. 658, and cit.

The court did not err in refusing to allow in evidence certain resolutions of the board of county commissioners of Meriwether county tending to indicate that the state highway department was made the agent of the county to do construction work upon state route No. 41. The plaintiff could not in this way establish liability against the county as for acts...