52 Ga. App. 56 | Ga. Ct. App. | 1935
The plaintiff tripped on a wire of the Georgia Power Company, fell, and was injured. The wire extended down into a public sidewalk in the City of Atlanta and was firmly attached, projecting about a foot out of the sidewalk and being bent over a few inches above it. Plaintiff notified the City of her accident and injury by filing a written claim. She originally claimed damages of the City and of the power company as joint tort-feasors, and .instituted hex suit against both defendants. Thereafter, she amended her petition by striking the Georgia Power Company, as a defendant, and then proceeded against the City of Atlanta alone. The City demurred generally to plaintiff’s petition, as thus amended, on various grounds, which will be dealt with in the syllabus opinion following this summary of the proceedings in this case. The judge overruled the demurrer on each ground thereof, and the city excepted.
1. The defendant in error moved to dismiss the writ of error. This motion will be disposed of first. Where the defendant in the trial court interposes demurrers to the petition, which if sustained would result in a dismissal of the ease and its final termination in favor of defendant, but which the trial judge overrules, the defend
(а) A motion to dismiss is not the proper remedy to compel compliance with the provisions of the Code, § 6-801, that the bill of exceptions shall specify such portions of the record as are material and necessary to a clear understanding of the errors complained of. Holmes v. Pope, 1 Ga. App. 338 (58 S. E. 281); Southern Mining Co. v. Brown, 107 Ga. 264 (33 S. E. 73); Atlanta Suburban Land Corp. v. Austin, 122 Ga. 374 (50 S. E. 124); Beasley v. Howard, 34 Ga. App. 102 (128 S. E. 203); City of East Point v. Christian, 40 Ga. App. 633 (151 S. E. 42).
(б) It follows that the motion to dismiss the writ of error is without merit, and must be denied.
2. When two or more persons are sued in the same action either on a contract'or for a tort, the plaintiff may amend his petition by striking one or more of such defendants and proceed against the remaining defendant or defendants, if there be no other legal difficulty in the case. Code of 1933, § 81-1306. Joint tort-feasors may be sued jointly or severally. Persons guilty of separate acts of negligence which jointly and concurrently co-operate in causing an injury, are joint tort-feasors and may be sued as such. Akin v. Brantley, 26 Ga. App. 326 (106 S. E. 214); Mashburn v. Dannenburg Co., 117 Ga. 567 (44 S. E. 97). Plaintiff may sue one or all of such joint tort-feasors; and where she sues all, she may dismiss as to one defendant without affecting her rights as to the other defendant. Wall v. Wall, 176 Ga. 757, 759 et seq. (168 S. E. 893).
4. The petition set out a cause of action for submission to a jury as to whether or not the City was negligent. See Holliday v. Athens, 10 Ga. App. 709; City of Rome v. Stone, supra. Plaintiff alleges that the City was negligent in allowing the wire to remain on the sidewalk and that the same constituted an obstruction of the sidewalk and rendered it unsafe for pedestrian travel.
5. The trial judge properly overruled the general demurrer of the City on each and every ground thereof.
Judgment affirmed.