Southern Bell Tel. & Tel. Co. v. Martin

• Decision Date: 04 December 1972
• Docket Number: No. 27529,27529
• Court: Georgia Supreme Court
• Parties: SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY v. Beverly Ann MARTIN.

Page 910

194 S.E.2d 910

229 Ga. 881

SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY v. Beverly Ann MARTIN.

No. 27529.

Supreme Court of Georgia.

Dec. 4, 1972.

Rehearing Denied Dec. 20, 1972.

Harry S. Baxter, William W. Cowan, A. Stephens Clay, Atlanta, for appellant.

Hansell, Post, Brandon & Dorsey, W. Lyman Dillon, Jule W. Felton, Jr., Powell, Goldstein, Frazer & Murphy, Daryll Love, Atlanta, for appellee.

Bouhan, Williams & Levy, George W. Williams, Leamon R. Holliday, III, Savannah, Joe M. Harris, Jr., Atlanta, Trotter & Duncan, William P. Trotter, LaGrange, Henry L. Bowden, Edwin L. Sterne, Atlanta, Tisinger & Tisinger, Robert D. Tisinger, Carrollton, Carl E. Sanders, Allen E. Lockerman, Robert L. Pennington, Atlanta, amicus curiae.

Syllabus Opinion by the Court

UNDERCOFLER, Justice.

This case is here on certiorari from the Court of Appeals. Beverly Ann Martin filed a complaint seeking recovery for injuries she sustained when the automobile in which she was a passenger collided with a telephone pole constructed and maintained by Southern Bell Telephone & Telegraph Company in the City of Atlanta. The complaint was filed against the driver of the vehicle, the owner of the vehicle, and Southern Bell. This appeal involves the sole question of whether the trial judge properly granted Southern Bell's motion for summary judgment. The Court of Appeals held that the motion for summary judgment should not have been granted and reversed the trial court. A full statement of the facts appears in Martin v. Southern Bell Telephone & Telegraph Co., 126 Ga.App. 809, 192 S.E.2d 176.

As a part of its motion for summary judgment, Southern Bell attached certain ordinances of the City of Atlanta granting it a franchise to use its streets and to construct, operate and maintain telephone and telegraph lines, including the erection of poles. The ordinance provides: 'That the work of erecting poles, and constructing sub-ways shall be done under the supervision of the city electrician, or the street committee, or such other person or persons as the city council may designate. Held:

1. The owner of a telephone pole is not liable for its alleged negligent placement in a public road right of way where such pole is located with the approval of the county or municipal authorities and does not obstruct or interfere with the ordinary use of the public highway. In our opinion this is the intent of Code § 104-205. It specifically grants to telephone companies the right to locate their lines '. . . upon, under, along, and over the public highways of this State, with the approval of the county or municipal authorities in charge of such highways . . .' The City of Atlanta in 1907 granted to Southern Bell Telephone & Telegraph Company the right to construct, operate and maintain its lines and provided, 'That the work of erecting poles . . . shall be done under the supervision of the city electrician, or the street committee, or such other person or persons as the city council may designate.' However, the city may also acquiesce in the location of the poles. As stated in South Georgia Power Company v. Smith, 42 Ga.App. 100(2), 155 S.E. 80, 'Since the city could have lawfully authorized the erection of the poles in the middle of the street, the acquiescence by the city in the maintenance of the poles in the middle of...