Reliable Transfer Co. v. May

• Decision Date: 16 February 1944
• Docket Number: 30320.
• Citation: Reliable Transfer Co. v. May, 70 Ga.App. 613, 29 S.E.2d 187 (Ga. App. 1944)
• Parties: RELIABLE TRANSFER CO. et al. v. MAY et al.
• Court: Georgia Court of Appeals

29 S.E.2d 187

70 Ga.App. 613

RELIABLE TRANSFER CO. et al. v. MAY et al.

No. 30320.

Court of Appeals of Georgia, Division No. 1.

February 16, 1944

Syllabus by the Court.

1.It is permissible, in a proper case of facts, in the same petition, to allege negligence based on a violation of a regulation of the Public Service Commission, the violation of a municipal ordinance, the violation of a State law, as well as acts of negligence based on the common law.The court did not err in overruling the general demurrer to the petition as amended.

2.(a)The Constitution confers, on appeal, exclusive jurisdictional authority in the Court of Appeals, to pass upon the constitutionality of a regulation of the Public Service Commission based upon the legislative act creating such body.Such regulation has the effect of law, but is not under our Constitution a "State law" within the meaning of the Constitution, which gives exclusive jurisdiction on appeal to the Supreme Court to pass upon the constitutionality of a State law.

(b)This court has previously held that a regulation of the Public Service Commission, such as is now before us, is not unconstitutional.The court did not err in overruling the demurrer, or the objections to and motion to strikethe amendment for any of the reasons assigned.

This case is here on behalf of Reliable Transfer Company, James Hardaway, its driver, and Liberty Mutual Insurance Company its insurance carrier, as plaintiffs in error, all of whom will be hereinafter designated as the defendants, against Claude Adams May, defendant in error, will be called the plaintiff.The defendants except to the judgment overruling their demurrers to the amended petition.The allegations of the original petition and the amendment thereto and the demurrers of the defendants, insofar as material to an understanding of the case, are substantially as follows "Original Petition.On May 11, 1943, Claude Adams May filed suit in the superior court of McDuffie county, Georgia against Reliable Transfer Company, James Hardaway, its driver, and Liberty Mutual Insurance Company, its insurance carrier, (and also against General Accident Fire & Life Insurance Company, its alleged insurance carrier, who has been dismissed), George A. Rheman Company, Inc., Clinton Tompkins Ouzts, its driver, American Fidelity and Casualty Company, its insurance carrier, and S. A Blanchard, for injuries received on November 28, 1942 while he was riding as a patient in the ambulance of S. A Blanchard, when it collided with a truck of George A. Rheman Company, Inc. at the intersection of State HighwayNo. 78(Hill Street) and State HighwayNo. 17(Jackson Street) in Thomson, Georgia, one of the causes of the collision alleged being the negligence of Reliable Transfer Company, in that it had one of its trucks parked at the intersection so as to obscure the view of the driver of both of the colliding vehicles.The allegations of the petition were as follows: That early on the morning of November 28, 1942, and before daylight, Claude A.Maywas attacked with a sudden illness which, on the advice of his physician, necessitated his being immediately carried to the hospital at Washington, Georgia, for emergency treatment; and S. A. Blanchard, who was engaged in furnishing ambulance service to patrons in McDuffie and the surrounding counties, was called; that said S. A. Blanchard sent his ambulance to plaintiff's home, in the charge of said S. A. Blanchard's agent and employee, to wit, Gordon Dunn; that plaintiff was placed in the ambulance by Gordon Dunn and another employee of the said S. A. Blanchard, to wit, Carl Gallahar; that said Gordon Dunn proceeded to drive the ambulance towards Thomson, which was about three miles or less from plaintiff's home, and Thomson being between plaintiff's home and Washington, Georgia; that Carl Gallahar sat down in the back part of the ambulance where plaintiff was riding; that the lawful rate of speed inside the city limits of Thomson is 20 miles per hour; that plaintiff attaches hereto a copy of the ordinance of the City of Thomson as to the lawful speed limit; and especially pleads and relies on same; that the city ordinance of Thomson provides that all automobiles on Jackson Street in said city shall have the right of way over automobiles on intersecting streets, and that it is the duty of automobiles on streets which cross or intersect Jackson Street to slow down or stop in order that automobiles on Jackson Street may proceed to have the preference of the right-of-way, and that plaintiff especially relies on and pleads said ordinance; that as the ambulance reached Jackson Street, the driver proceeded to turn on his siren alarm, but as he approached the intersection of Hill Street, which is the Augusta highway, commonly called "the traffic light intersection,"he was driving said ambulance at a speed in excess of the speed which is allowed by the city ordinance of Thomson, as above specified; that is, he was driving in excess of 20 miles per hour; that as the ambulance approached the traffic light intersection at Hill Street a large truck, owned by the Reliable Transfer Company, was standing in the street at said intersection in such a manner that it was headed toward Atlanta opposite and near to Johnson's filling station, and was standing about 12 feet from the curb so that it was partly in the street, and at the time said truck was under the control and operation of James Hardaway, the agent and employee of the Reliable Transfer Company; that said truck was a large one with a body about 40 feet in length, coupled with the front part of the truck, and about 12 feet in height; that it was standing in such a manner as to form a partial blockade of vision of the Augusta highway as respected a driver approaching from Augusta on Hill Street; that as the ambulance approached the traffic light, said light was not operating, it being customary to have it turned off during the hours from midnight until dawn; that as the ambulance approached the traffic light intersection, another vehicle, being a large gasoline truck, owned by the defendant, George A. Rheman Company, Inc., driven by its agent and employee Clinton Tompkins Ouzts, approached from the direction of Augusta along Hill Street; that said truck was traveling at a rapid rate of speed of approximately 65 to 70 miles per hour, in excess of the State speed law; that as said ambulance and said gasoline truck approached said intersection, the vision of the driver of each vehicle was partially obscured as to the traffic on the approaches from Augusta and Jackson streets, that is, the ambulance driver could not see clearly as to whether any traffic was approaching on Hill Street, and the gasoline truck driver could not see clearly as to whether any traffic was approaching from Jackson Street; that nevertheless each driver proceeded across the intersection, that is, attempted to cross, and a collision of the ambulance and gasoline truck resulted; that the gasoline truck struck the ambulance with such force that it was turned over several times, and Carl Gallahar was killed, and this plaintiff was seriously, painfully, and permanently injured.Plaintiff alleges that S. A. Blanchard is responsible for the acts of negligence on the part of Gordon Dunn, that the George A. Rheman Company, Inc., is responsible for the acts of negligence of Clinton Tompkins Ouzts, and the Reliable Transfer Company is responsible for the acts of negligence of James Hardaway; and he alleges that each of these parties acted as agents for their employers in this case, and that the acts of negligence were committed while acting within the scope of their employment, and in pursuance thereof; that the George A. Rheman Company, Inc., and Clinton Ouzts committed the following acts of negligence which are acts of negligence proximately causing the collision and plaintiff's injuries, to-wit: (a) In driving his truck at a rate of speed in excess of the city ordinance as to speed limits, and in excess of the limit allowed by the law of Georgia, and at a rate of speed that was too great to be reasonable and safe, having regard for the character of the intersection; (b) in proceeding to try to negotiate said intersection without being able to see to his left-hand side, and without knowing that the street to his left was clear of approaching traffic; (c) in trying to negotiate said intersection when the siren on the ambulance was making enough noise as a warning for him to hear, and which he did hear unless his hearing was impaired or unless he had the glasses of the cab closed so tightly that he could not hear, or unless he was asleep or partly asleep; (d) in failing to observe the law of the City of Thomson with regard to allowing traffic on Jackson Street to have the preference or right-of-way over traffic on other streets which cross or intersect Jackson Street; and in failing to slow his truck down, or bring it to a complete stop if necessary, to allow the ambulance to have the right of way; (e) in failing to apply his emergency brakes and slow the speed of his truck down, after he did observe the approaching ambulance, so as to soften the force of the blow; that Gordon Dunn, acting as the agent and employee of S. A. Blanchard and in the scope of his employment, owed more diligence to protect said Claude May from injury than slight diligence, that the said Claude May was a paying passenger, and he was entitled to ordinary diligence, and that said Gordon Dunn committed the following acts of ordinary negligence which proximately caused the collision and plaintiff's injuries towit: (a)He drove the ambulance inside the city limits of Thomson on Jackson Street in excess of 20 miles per hour in violation of the city speed...