Southern Ry. Co. v. Wooten
| Decision Date | 16 June 1964 |
| Docket Number | No. 1,No. 40675,40675,1 |
| Parties | SOUTHERN RAILWAY COMPANY et al. v. Valda WOOTEN |
| Court | Georgia Court of Appeals |
Harris, Russell & Watkins, John B. Harris, Jr., Macon, Smith & Harrington, Will Ed Smith, Eastman, for plaintiffs in error.
Hamilton Napier, Macon, for defendant in error.
Syllabus Opinion by the Court
1. A master and his servant may be jointly sued for damages resulting solely from the negligence of the servant. Southern Railway Co. v. Grizzle, 124 Ga. 735, 53 S.E. 244; Southern Railway Co. v. Harbin, et al., 135 Ga. 122, 68 S.E. 1103, 30 L.R.A.,N.S., 404; Fowler v. National City Bank of Rome, 49 Ga.App. 435, 176 S.E. 113; Georgia Power Co. v. Blum, 80 Ga.App. 618, 57 S.E.2d 18; Graham v. Raines, 83 Ga.App. 581, 64 S.E.2d 98.
2. While Code § 94-1101 provides that '[a]ll railroad and electric companies shall be sued by anyone whose person or property has been injured * * * for the purpose of recovering damages for such injuries, in the county in which the cause of action originated * * *' and such provisions are jurisdictional in their nature and cannot be waived, Summers v. Southern Railway Co., 118 Ga. 174, 175, 45 S.E. 27, Georgia, Ashburn, Sylvester & Camilla Ry. Co. v. Atlantic Coast Line R. Co., 88 Ga.App. 426, 429, 76 S.E.2d 724, this Code section must be construed in connection with controlling provisions of the Constitution of this State which in Art. VI, Sect. XIV, Par. IV (Ga. Code Ann. § 2-4904) provides that 'suits against joint obligators, joint promissors, copartners, or joint trespassers, residing in different counties, may be tried in either county.' The words, 'joint trespassers,' in this constitutional provision has reference to all joint tortfeasors, Cox v. Strickland, 120 Ga. 104, 47 S.E. 912, Southern Ry. Co. v. Rome, 179 Ga. 449, 176 S.E. 7, Georgia Power Co. v. Blum, 80 Ga.App. 618(1), 57 S.E.2d 18, and a suit against a railroad and another as joint tortfeasors may be brought in the county of the residence of the individual tortfeasor; and, the fact that the individual tortfeasor is the servant of the railroad and the servant's negligence is the only negligence charged against the railroad, will not alter the rule. Central of Georgia Ry. Co. v. Brown, 113 Ga. 414, 38 S.E. 989; Southern Ry. Co. v. Grizzle, 124 Ga. 735, 53 S.E. 244; Georgia Power Co. v. Blum, 80 Ga.App. 618, 57 S.E.2d 18.
3. While the Supreme Court in Southern Railway Co. v. Harbin, 135 Ga. 122, 68 S.E. 1103, held that an action against a railway company and its servant to recover damages solely in consequence of the servant's misfeasance where a verdict is returned finding the servant not liable but finding in favor of the plaintiff against the railway company, such verdict should be set aside and a new trial granted, and did, after so holding, quote from several foreign cases, one of which stated, 'But the defendants in this character of action are in no sense joint tort-feasors, nor does their liability to the plaintiff rest upon the same or like grounds'; there is no language in the case indicating that its holding was based upon any such theory, and we do not construe this case as holding that a servant codefendant of a railroad whose negligence is the basis of the action against both is not a joint tortfeasor with the railroad within the meaning of the constitutional provision relating to venue.
4. Of the alleged releases from liability attached to the petition, one is identical with that construed adversely to the defendant railway company in Bohannon v. Southern Railway Co., 97 Ga.App. 849, 104 S.E.2d 603, and we think properly so, insofar as it is applicable to the facts of this case, and therefore refuse to grant defendant's request to overrule this case. The other alleged releases relate only to damage by fire see, Davis v. Gossett & Sons, 30 Ga.App. 576, 118 S.E. 773, and have no application to the present case where no fire was involved. The release in Blitch v. Central of Georgia R. Co., 122 Ga. 711, 50 S.E. 945, and in Dowman-Dozier Mfg. Co. v. Central of Georgia R. Co., 29 Ga.App. 187, 114 S.E. 815, related to injury caused by 'fire or from any other cause whatsoever' even if caused by negligence of the railway, and for this reason each is distinguishable from the releases in the present case.
5. Ordinarily, Edelson v. Hendon, 77 Ga.App. 395 (1), 48 S.E.2d 705. While there may be an...
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