Rodgers v. Styles
| Decision Date | 09 September 1959 |
| Docket Number | Nos. 37753,No. 2,37755,s. 37753,2 |
| Citation | 100 Ga.App. 124,110 S.E.2d 582 |
| Parties | J. M. RODGERS et al. v. A. G. STYLES et al., etc. Henry HARRIS v. A. G. STYLES et al., etc |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. Where a local school board had conveyed to the State School Building Authority legal title to certain school premises, and where the Authority had contemporaneously therewith entered into a lease contract with the school board under the terms of which the property so conveyed was leased to the board for a period of 20 years with an absolute right of reconveyance to the board at the end of that period, and where the Authority in conjunction with the local board had entered into a contract with the defendant contractor to erect certain improvements on the property thus conveyed and leased, the State School Building Authority had such an interest in the property as would enable it to join with the local board in maintaining an action against any person, or persons, liable on account of damages to the property.
2. The petition in this case being an action against a prime contractor, against an independent subcontractor and against an employee of the latter, if it set forth a cause of action against the defendants at all, it did so against the prime contractor only ex contractu, and against the subcontractor and its employee, only ex delicto. The allegations of the petition showing that the subcontractor exercised an independent business and that it was not subject to the immediate direction and control of the prime contractor, the prime contractor was not responsible for torts committed by the subcontractor or by any of its employees. Code, § 105-501.
(a) The allegations of the petition were not sufficient to bring the case here within any of the exceptions set forth in Code, § 105-502, and the various subparagraphs thereof, to the general rule set forth in Code, § 105-501.
(b) Accordingly, the demurrers to the petition and to both counts thereof on the ground that the same was multifarious, and on the ground that there was a misjoinder of parties defendant and of causes of action should have been sustained, and the trial court erred in not sustaining those grounds of demurrer filed by each of the defendants in these cases.
3. The introduction into the case of the question of insurance coverage carried by the defendants, in the pleadings, in the evidence, and in the argument of counsel before the jury injected irrelevant, immaterial and prejudicial matter, and the trial court erred in refusing to require the plaintiffs to physically expunge from their pleadings allegations respecting insurance which allegations had been stricken on special demurrer, and erred in thereafter failing to grant a mistrial upon timely motion of counsel for the defendants when evidence thereof was introduced, and erred in refusing to grant a mistrial upon timely motion of counsel for the defendants when counsel for the plaintiffs argued to the jury in such a fashion as to re-emphasize to the jury the existence of insurance coverage.
4. Where the agents and servants of one of the defendants who were performing work on the plaintiff school board's property which resulted in damage and destruction to it, had had no other contact with the plaintiffs except through their agent and servant who was the principal of the school on which they were working, and who, under the evidence, had given to the defendant's said agents and servants, purported instructions as to the proper method of cleaning out certain described dry closets (toilets) by building a fire therein, such school principal was an agent of the plaintiff school board within the meaning and intent of Code, § 38-1801 so as to be subject to being put on the stand for cross-examination by the defendants, and the trial court erred in refusing to allow the defendants to put the said school principal on the witness stand for that purpose, and in requiring the defendants to make him their witness, and in refusing to allow counsel for the defendants to cross-examine him, and in thereafter allowing counsel for the plaintiffs to cross-examine and lead him.
5. Where, as in this case, the suit was against multiple defendants only one of whom was a resident of the county where the suit was brought, it was improper for counsel for the plaintiff to inform the jury in his argument that they must return a verdict against the resident defendant in order that a verdict against the other defendants be valid. Accordingly, where such argument was made and a timely motion for a mistrial was made by counsel for the resident defendant, such motion ought to have been granted.
6. The other assignments of error in the case are either not meritorious, or raise questions which are not likely to recur on another trial. For these reasons, none of the other questions so raised will be passed on at this time.
The individual members of the Carroll County Board of Education in their official capacity as such, together with the State School Building Authority, brought suit in Carroll Superior Court against LeRoy C. Watson and Robert O. Yeargan, residents of Wayne County, and a partnership doing business as Watson and Yeargan, and against James M. Rodgers and J. Henry Morgan, individuals, residents of Muscogee County, and a partnership doing business as Rodgers and Morgan Plumbing Company, and against Henry Harris, an individual, a resident of Carroll County. The petition as finally amended was in two counts. It was alleged therein and shown by the evidence on the trial that the petitioners entered into a contract with the defendants Watson and Yeargan to perform certain services in repairing and renovating the Temple Elementary School, at Temple, in Carroll County; and, that the work to be done included removal of certain incinerator type of dry closets preparatory to installation of new plumbing and heating facilities. It was alleged that the defendants Rodgers and Morgan, as subcontractors of Watson and Yeargan, through their agents and employees, including the defendant, Harris, entered on the premises to commence the performance of the work on the plumbing and heating system of the building, and did on July 17, 1957, negligently and without using ordinary care and without having any knowledge of the operation of the facilities dealt with ignite combustible materials in the said incinerator type dry closets, and did allow the fire so ignited to get out of control, and did thereby set fire to and burn and destroy a major portion of the said Temple Elementary School to the loss and damage of the plaintiffs in the sum of $55,417.24. The defendants were alleged to have been negligent in certain respects, which negligence was alleged to be the proximate cause of the fire getting out of control and burning the building. The two defendant partnerships filed general and special demurrers separately to the petition, and the defendant individual, Henry Harris, also filed general and special demurrers. The plaintiffs amended and the defendants all renewed their original demurrers and filed additional demurrers. Thereafter, the trial court entered an order sustaining some of the special demurrers and overruling others and overruling the general demurrers. The plaintiffs again amended and to the petition as amended, the defendants filed renewed and additional general and special demurrers. The court entered an order sustaining some of the special demurrers and overruling the general demurrers and the other special demurrers. The orders on the demurrers, insofar as they were adverse to the defendants, are assigned as error in this court.
On the trial the jury returned a verdict for the plaintiffs in the amount sued for. The defendants each filed their separate motions for new trial and thereafter amended them by adding numerous special grounds. The trial court overruled these motions for a new trial and those judgments are assigned as error in this court.
Such other facts as are necessary to a clear understanding of the rulings made will be stated in the decision.
Walter D. Sanders, Newnan, B. D. Murphy, Edward E. Dorsey, Powell, Goldstein, Frazer & Murphy, Atlanta, for plaintiffs in error.
Robt. D. Tisinger, Shirley C. Boykin, Carrollton, for defendants in error.
'rlisle, Judge (after stating the foregoing facts).
These cases are before this court on writs of error, each containing some 50 assignments of error, all of which are insisted upon by counsel for the plaintiffs in error. While there are some variations in the assignments of error between the records, all of the issues which we deem it important and necessary to consider and decide at this time are raised in one form or another in each of the records. Because of these variations, however, this opinion concerns itself only with the issues made by the appeal of the defendants Rodgers and Morgan, and by Henry Harris. Many of the issues raised will not likely recur on another trial. However, the issues which are not expressly passed upon have all been carefully considered and have been adjudged to be without merit.
1. The petition was brought in the name of the individual members of the Carroll County Board of Education acting in their official capacity, and in the name of the State School Building Authority, for the use and benefit of the Carroll County Board of Education. The State School Building Authority is a body corporate with authority to sue and to be sued. Ga.L.1951, p. 241 et seq. (Code, Ann., § 32-1404a et seq.). The petition alleged that the county board had by warranty deed conveyed the property in question to the State School Building Authority prior to the occurrence of this loss; that the State School Building Authority had entered into a lease contract with the school board under the terms of which the property was leased to the board for a period of 20 years with an absolute right of reconveyance...
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