Scearce v. City of Gainesville

• Decision Date: 11 February 1925
• Docket Number: 15450.
• Citation: 126 S.E. 883,33 Ga.App. 411
• Parties: SCEARCE v. MAYOR AND COUNCIL OF GAINESVILLE ET AL.
• Court: Georgia Court of Appeals

126 S.E. 883

33 Ga.App. 411

SCEARCE v. MAYOR AND COUNCIL OF GAINESVILLE ET AL.

No. 15450.

Court of Appeals of Georgia, Second Division

February 11, 1925

Syllabus by the Court.

The general rule of law is that a municipal corporation is bound to keep its streets and sidewalks in a safe condition for travel in the ordinary modes, by night as well as by day and, if it fail to do so, it is liable for damages for injuries sustained in consequence of such failure. A municipal corporation is liable for injuries caused by its neglect or omission to keep its streets and sidewalks in repair, and may be liable for those caused by defects occasioned by the wrongful acts of others. In the latter class of cases the foundation of the action is negligence. Mayor of Atlanta v. Perdue, 53 Ga. 607, 608; Mayor of Milledgeville v. Cooley, 55 Ga. 18 (1); Chapman v. Mayor of Macon, 55 Ga. 566 (1), 568; City Council of Augusta v. Tharpe, 113 Ga. 152 (3) 38 S.E. 389.

"An owner of property abutting upon a street or highway is not by virtue of being such owner, liable for defects in the street or highway; but this rule has no application where the owner of abutting property creates a defect in a street or highway or a nuisance therein. In the latter event he is liable, not because he owns the abutting property, but because he creates or maintains the thing from which injury results." Ga. Ry. & Electric Co. v. Tompkins, 138 Ga. 596, 599 (2), 75 S.E. 664, 665.

It is a well-established general rule that, "where two or more persons or corporations, acting independently, without concert, plan, or other agreement, inflict a damage or cause an injury to another person, the persons inflicting the damage are not jointly liable therefor, but each is liable for his proportion only of the damages; and in such a case a joint action against them cannot be maintained." Armstrong v. Southern Ry. Co., 29 Ga.App. 418, 116 S.E. 31; Schneider v. City Council of Augusta, 118 Ga. 610, 611, 45 S.E. 459; Ga. So. & Fla. Ry. Co. v Corry, 149 Ga. 295, 301, 99 S.E. 881, City of Albany v. Brown, 17 Ga.App. 707, 88 S.E. 215; United Cigars Co. v. Ga. Ry. & Power Co., 27 Ga.App. 198, 107 S.E. 781; Brooks v. Ashburn, 9 Ga. 297 (3); Key v. Armour Fert. Works, 18 Ga.App. 472, 89 S.E. 593. But it is also true that, even though voluntary, intentional concert is lacking, if the separate and independent acts of negligence of several combine naturally and directly to produce a single injury, they may be sued jointly, despite the fact that the injury might not have been sustained had only one of the acts of negligence occurred. 38 Cyc. 488-490; Matthews v. Delaware, L. & W. R. Co., 56 N. J. Law, 34, 27 A. 919, 22 L.R.A. 261; Aaron v. Coca Cola Bottling Co., 143 Ga. 153, 155, 156, 84 S.E. 556; Ga. Ry. & Power Co. v. Ryan, 24 Ga.App. 288, 289, 100 S.E. 713. Thus, where two concurrent causes naturally operate in causing an injury, there can be a recovery against both or either one of the responsible parties (Bonner v. Standard Oil Co., 22 Ga.App. 532, 535, 96 S.E. 573; Kelly v. Ga. Ry. & Power Co., 24 Ga.App. 439 [4], 444, 101 S.E. 401; Central of Ga. Ry. Co. v. Macon Ry. Co., 9 Ga.App. 628 [4], 71 S.E. 1076; Akin v. Brantley, 26 Ga.App. 326, 106 S.E. 214; Central of Ga. Ry. Co. v. Garrison, 12 Ga.App. 369, 77 S.E. 193; Barrett v. Mayor of Savannah, 9 Ga.App. 644, 72 S.E. 49); and this is true although the duty owed to the complainant by both parties defendant may or may not have been the same. Gooch v. Ga. Marble Co., 151 Ga. 462, 107 S.E. 47; Central of Ga. Ry. Co. v. Wheat (Ga.App.) 122 S.E. 794; Fulton Ice & Coal Co. v. Pece, 29 Ga.App. 507 (5), 116 S.E. 57; Byne v. Mayor & Council of Americus, 6 Ga.App. 48 (3), 64 S.E. 285. In the instant petition, brought jointly against a municipality and the owner of a building and basement adjoining and beneath a sidewalk, on account of a broken air vent maintained by the owner in the sidewalk, the allegations sufficiently charged concurrent acts of negligence on the part of the defendants, naturally contributing to the injury, such as would support a joint action against both; especially is this true since the petition as amended specifically charges, not only legally concurring acts of negligence, but actual and definite concert of action with reference thereto.

(a) The case of Schneider v. City Council of Augusta, 118 Ga. 610, 611, 45 S.E. 459, concerned the right of the city to exact contribution from the property owner after vouching him into court under the statute. Civil Code 1910, § 5821. As stated in the opinion of that case, the sole question was "whether, under the pleadings and the evidence, the city was a joint tort-feasor with the defendant (property owner), so as to prevent its claiming contribution from him in the judgment paid by it to" the person injured. The only ruling in that case was to the effect that the status of joint tort-feasors was not such as would debar the right of contribution on the part of the city over against the property owner. That the status of mere joint tort-feasor does not necessarily debar the right of contribution, see Central of Ga. Ry. Co. v. Macon Ry. & Lt. Co., 140 Ga. 309, 313-317, 78 S.E. 931; Central of Ga. Ry. Co. v. Swift & Co., 23 Ga.App. 346, 98 S.E. 256.

However it is unnecessary to determine in this decision whether, under the particular facts alleged by the petition, the defendant municipality, if it should be held liable to the plaintiff, would be entitled, under section 5821 of the Civil Code 1910, to a remedy over against the defendant property owner as primarily responsible for the alleged injury. See, in this connection, W. & A. R. v. Atlanta, 74 Ga. 774 (2-6); Faith v. Atlanta, 78 Ga. 779, 4 S.E. 3; Raleigh R. Co. v. W. & A. R. Co., 6 Ga.App. 616, 617, 65 S.E. 586; Cen. of Ga. Ry. Co. v. Macon Ry. & Lt. Co., 9...