127 Ga. App. 129 | Ga. Ct. App. | 1972
1. The defendant Bibb County appeals from the denial of its motion to dismiss the complaint as to it, accompanied by a certificate as follows: "The court hereby certifies that this ruling is of such importance that the court certifies it for immediate appeal to the appellate courts of this State.” This language is substantially that specified by Code Ann. § 6-701 (a) (2) and the motion to dismiss the appeal is denied. State Hwy. Dept. v. Lord, 123 Ga. App. 178 (1) (179 SE2d 780); Hodge v. Dixon, 119 Ga. App. 397 (167 SE2d 377) (dissent).
2. The plaintiff-appellee is the widow of the deceased McDaniel, a passenger in an automobile driven by the defendant Overton, both men being employees of the defendant Southern Railway Company. The petition expresses its intention of seeking recovery from the employer under the provisions of the Federal Employers’ Liability Act, and alleges that the negligence of Overton, a fellow servant, in running off a highway combined with the negligence of the county in improper maintenance of a guardrail as part of an approach to a bridge located within the county. The county contends that the case is illegally proceeding against it because no joinder is permissible against it based on negligence resulting from the violation of a duty imposed on it by state law
Since 1917 when the Lee case was decided our procedure has changed, and is now controlled by Code Ann. § 81A-120: "All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences, and if any question of law or fact common to all of them will arise in the action. A. . . . defendant need not be interested in . . . defending against all of the relief demanded.” The cause of action posited certainly meets these specifications. In fact, it is interesting to note that in Way v. Waterloo &c. R. Co., 239 la. 244, 254 (29 NW2d 867, 174 ALR 723), where in a petition filed jointly against the carrier under the F. E. L. A. and a truck driver colliding with the train based on common law principles, and where a motion for separate trial on behalf of the railroad was made and granted (Iowa statutory law being substantially similar to our Code Ann. § 81A-120, supra) the Iowa Supreme Court reversed, holding it immaterial that the liability of one defendant is based on common law rules while that
3. Under the provisions of Code Ann. § 95-1001 counties are primarily liable and may be sued for injuries caused by defective bridges and the approaches thereto, but the appellant contends that this statutory exception to the common law rule does not extend to an action brought against a county as a joint tortfeasor in another county, and this petition was filed in the Superior Court of Cobb County, residence of the defendant Overton and a county where the railroad company had a place of business. It is urged that this is so because the doctrine of sovereign immunity obtains except where the statute dictates otherwise, and this statutory consent to suit must be construed strictly to restrict venue to those courts which lie within the county being sued. Certain language in Lincoln County v. Gazzaway, 43 Ga. App. 358 (158 SE 647), the only case relied upon to sustain this contention, is inapplicable because there the county was the sole defendant and the holding in that case was merely to the effect that the Superior Court of Lincoln County was a proper venue for the action. This action is a damage suit against joint and several tortfeasors, as to which the Constitutional provision (Code § 2-4904) applies to the
Judgment affirmed.