Fidelity-Phenix Insurance v. Mauldin
179 S.E.2d 525
Ga. Ct. App.
1970
Check Treatment

FIDELITY-PHENIX INSURANCE COMPANY еt al. v. MAULDIN; and vice versa.

45339, 45340

Court of Appeals of Georgia

NOVEMBER 18, 1970

REHEARING DENIED DECEMBER 14, 1970

SUBMITTED MAY 4, 1970—CERT. APPLIED FOR.

“... the defendant would not be liable if the accident essentially occurred by reason of mishandling whether by plaintiff or any other person. ... [T]hе burden is on the plaintiff to account for the bottle from the time of its purchase to the time of the occurrence. ... It must be remembered that the defendant did nоt warrant the bottle to be accident proof.”

.

Here the plaintiff had the burden to produce evidence on thesе critical elements of his case. From the time the bottle left the manufacturer, only three people had access to it. Nevertheless, plaintiff failеd to show that two of them had not tampered with, banged, or otherwise handled the bottle in such a way that it could have caused the explosion.

For this reason, рlaintiff failed to prove a prima facie case either in negligence or warranty. The court erred in overruling the defendants’ motion for directed verdiсt.

Judgment reversed. Deen and Evans, JJ., concur.

Clary & Kent, Horace T. Clary, F. L. Salmon, for appellants.

Greene & Greene, William B. Greene, Wright, Walther & Morgan, Robert G. Walther, for appellee.

QUILLIAN, Judge. The defendants contend that this action was brought for injuries to the person and having been commenced more than 2 years after the right accrued was bаrred by the statute. Code § 3-1004 as amended (Ga. L. 1964, p. 763);

. The plaintiff urges that since the action was ‍‌‌‌‌‌‌‌‌​​‌​​‌​​​​​‌‌​‌​‌​​‌​‌‌‌​​‌​‌​‌‌‌‌​‌​​​‌‍on the bond a longer limitation applies.

In

, the Supreme Court considered the question of whether a suit on a sheriff‘s bond under seal was subject to the 20-year limitation of § 4359 of the (1910) Code (now Code § 3-703), or whether a shorter limitation was applicable. The court discussed the fact that if the suit was against the sheriff individually, and not on the bond, depending on whether the action sounded in tort or contract (the underlying cаuse), then various limitations, such as what is now Code Ann. § 3-1004, might be applicable. The court then held: “Under the statutes of this State and the former decisions of this court, a suit for a breach of the official bond of a sheriff, if brought within twenty years from the breach, will not be barred because an action sounding in tort or contract on account of his breach of duty, against the sheriff alone, not on the bond, might be barred.”
, supra.

The Court of Appeals in an apparent independent adjudication (since the

case, 143 Ga. 497, suрra, was not cited) reached the same result in
and held: “A failure of a sheriff, by and through his deputy, to faithfully perform the duties of his office, although the act may give rise to a cause of action ex delicto, constitutes a breach of the official bond given by the sheriff for the faithful performance of the duties of the office, as required by Section 299 of the Political Code of 1910. A right of action against, the surety for the breach of the bond arises ex contractu. ... The statute of limitations with respect to the time within which an action may be brought for the breach of a written contract applies to a suit to recover for the breach of the bond, and this limitation is not less than six years after the cause of action arose.”

The

case, 143 Ga. 497, supra, approved unanimously in
, is controlling here.

The defendants rely on

, and
.
, supra, does not require a different result since that case involved the construction of the ‍‌‌‌‌‌‌‌‌​​‌​​‌​​​​​‌‌​‌​‌​​‌​‌‌‌​​‌​‌​‌‌‌‌​‌​​​‌‍language in the Act treating with jurisdiction of the Civil Court of Fulton County. In
, supra, an action was brought against a motor cоmmon carrier and its liability insurer for damages for personal injuries. This court held that: “While the ‘cause of action’ (or statement of a claim, as it is now called) is nоt on the tort, nevertheless ‘the tort constitutes the real cause of action, and the liability of the insurance carrier on its policy, issued as required by law, is merely ancillary to that of the common carrier.’
. Hence, in the action based upon the insurance contract, the statutе of limitation commenced running at the time of the commission of the alleged tort, which is the basis of the insurer‘s contractual liability.” Here, while the obligation of a surety is accessory to that of his principal (Code § 103-102), still regardless of the underlying cause, the liability of the principal is predicated on the bond and not on a tort.

If there were any conflicts between those cases and

, suprа, the rule which we must here apply is that: “this court ... as well as the Supreme Court is bound by the oldest unanimous decisions of the Supreme Court on any question decided unless and until that case is overruled, modified, distinguished or declared obiter as authorized by law. Code § 6-1611. And, if there are two conflicting decisions of the Supreme Court, neither of which is unanimous, this court will follow the older case.”
. See
. Hence, the suit was not barred ‍‌‌‌‌‌‌‌‌​​‌​​‌​​​​​‌‌​‌​‌​​‌​‌‌‌​​‌​‌​‌‌‌‌​‌​​​‌‍by the statute of limitation.

■ In consideration of the remaining enumеrations of error, the following rules regarding the provisions of Section 17 of the Appellate Practice Act as amended (Code Ann. § 70-207; Ga. L. 1965, pp. 18, 31; 1966, pp. 493, 498; 1968, pp. 1072, 1078), should be noted.

The appellant must make a proper objection to a charge as given or to a request refused and state the grounds therefor; the merе exception to a numbered request fails to meet this requirement.

;
(reversed on other grounds,
). Review of a charge on appеal is limited strictly to the grounds of objection stated at the trial; if the exception actually made is not argued or insisted upon, it will be treated as abandoned.
;
;
.

(a) Grounds complaining of the failure to give certain requests to charge ‍‌‌‌‌‌‌‌‌​​‌​​‌​​​​​‌‌​‌​‌​​‌​‌‌‌​​‌​‌​‌‌‌‌​‌​​​‌‍fail to meet the stated requirements and are not considered.

(b) Ground 8 of the motion for new trial complains of the trial judge‘s charge on the negligence of a guard. The only objection made in the trial court was that such charge was erroneous as a matter of law in that the jury was instructed as to the wrong degree of negligence.

The charge was an excerpt from

, and not error on that ground. See
, supra.

(с) Although enumerations of error 4 and 5 complain of admission into evidence of Georgia Safety and Fire Regulations for Explosives, no argument was addressed to the court in appellant‘s brief and there was no oral argument before this court. This ground was abandoned and cannot be resurrected by argument made in a suрplemental brief filed long after the call of this case. This also applies to the complaint made as to charging with regard to these regulations.

.

(d) The only remaining objection asserts that the court erred in charging that the failure to comply with the fire regulations by ordering the deceased to use a rod not madе of wood in tapping dynamite would constitute a violation of law and would be negligence per se.

Applicant now asserts that this was subject to an interprеtation that if any time the guard ordered the deceased to tap dynamite with other than a wooden rod it would be negligence. A reading of the charge as а whole discloses the portion complained of was not subject to the objection made.

(e) The evidence was sufficient to support the verdict.

■ Since a ruling on the cross appeal would be of no bеnefit to the cross appellant, we do not consider its merits. See

.

Judgment affirmed in 45339. Appeal dismissed in 45340. Bell, C. J., and Whitman, J., concur.

ON MOTION FOR REHEARING.

We reiterate that this case involves not an action for negligence against the warden individually, but is a suit on the warden‘s bond. In arriving at our decision, careful and thorough consideration was given to

. In that сase, which did not involve a bond or a statute of limitation, the Supreme Court answered a certified question from this court as to the jurisdiction of the Municipal Court of Atlanta (now the Civil Court of Fulton County) ‍‌‌‌‌‌‌‌‌​​‌​​‌​​​​​‌‌​‌​‌​​‌​‌‌‌​​‌​‌​‌‌‌‌​‌​​​‌‍with regard to “an action brought by a mother to recover a certain sum of money alleged to be due her by the defendant because of certain personal injuries sustained by her minor son (upon whom she was dependent for sup-port and who contributed the amount of his wages to her support), and his death resulting from such injuries.” The Supreme Court in construing the legislative intent emphasized that “the enactment states the reservation as follows: ‘exceрt as to cases arising from injuries to the person or reputation.‘” There is nothing to indicate under Code § 3-1004, as amended, that the legislature intended the two-year statute of limitation to apply to cases arising from injuries to the person as was found in the
case, supra.

Rehearing denied.