*2
bridge
alleged
law.1 2She
that the
Eugene
Miller,
Summerour, Paul
E. J.
negligently
had
permitted
and
Altman,
Ga.,
Atlanta,
Thomas
Cook,
Sol
to it to
be
remain in a
Atty.
Murdaugh,
Ga.,
Asst.
ville,
Lamar
bad
repair,
negli-
state of
Hogg,
Conlin,
E.
Gen.,
John
Ariel
gence
V.
was
proximate
direct
cause
Attys. Gen.,
&
Deputy
Altman
Asst.
of her husband’s death.
appellant.
Thomasville, Ga.,
Johnson,
for
highway upon
ac
fatal
The
Alexander,
Lilly,
Roy
Vann,
M.
T. H.
road
cident
was
State-aid
occurred
Thomasville, Ga.,
Lilly,
Willis
J.
& Vann
Highway Department
which the State
Bainbridge,
Conger
Conger,
Conger,
&
duty
was under a
to maintain
appellee.
Ga., for
Georgia.2
imposes
laws of
The statute
BROWN, upon
Highway
RIVES,
Department the
Before
JONES
duty
Judges.
to defend suits
counties
Circuit
origin
where the cause of action has its
Judge.
JONES,
highway
Circuit
on a
which the State has taken
Grady County
over.3
vouched in
Dickerson, the
Thomas
Donald
Highway
it,
State
act
driving his
appellee, was
husband
ing
Grady County,
in the
filed
name of
Grady
through
Geor
automobile
By
a motion to
and an
dismiss
answer.
Highway
also
No.
gia,
S.
over U.
the motion to
was asserted
dismiss it
the after
on
Route
State
known as
jurisdiction.
court was without
August 6,
had been
1955. There
noon
challenging
jurisdiction of the
In
heavy
rain
unusually
The
rain.
an
court, it
contended in
the district
heavy
As
moderate.
off from
slacked
court and is here contended
under
Brumb
approached
car
the
ley
Georgia
county
only
statutes the
col
control and
out of
it went
Creek
High
a nominal defendant with the State
left side
on the
an abutment
with
lided
way Department being,
reality,
bridge.
thrown
of the
“
damages
against any county
* * *
awarded
un-
however,
Provided,
existing laws,
der
whenever
the cause
primarily
every
be
shall
originates
highways,
jurisdic-
action
on
injuries
caused
for all
liable
tion over which shall have been assumed
any
bridges, whether
erected
defective
Highway Department
said
under
authorities.
or
contractors
Any county
terms of this law.
sued
‘bridges’
shall
in this section
term
The
Highway Department
vouch said
to de-
af-
erected to
defined as
structure
be
litigation,
by furnishing
fend such
said
traffic over an
ford unrestricted vehicular
Highway Department with a notice to de-
public
obstruction
suit,
fend such
to which said
streams,
ponds,
notice shall
including rivers,
State,
copy
petition
be attached a
served
bays,
ravines,
gullies,
railroads,
lakes,
county.
on said
Said notice shall be
canals;
highways
public
the term
given
Highway Department
to the State
in-
defined in this section shall
days prior
day
least 10
to the return
approaches
to the structure
clude
of the term at which said suit must be
previously
within 50 feet of either
defined
Highway Depart-
answered.
The
except
State
where the
of said structure
end
right
ment
shall have the
and author-
100 feet or
itself measures
more
adjust
ity to
and settle in the name of
within 100 feet of ei-
said event
and in
and on
Georgia
its own behalf
end of said structure.”
ther
claim for
for which the State
Code, 95-1001.
§
Highway Department may be ultimate-
seq.
Georgia Code,
95-1701 et
ly liable under the terms of this section.”
Code, §
State
shall
95-1710.
“The
responsible
all suits
all
defend
High-
legislature of the
Where
imposed
in the cause.
defendant
duty
urged
upon counties
district
way Department
state has
urges
provided
and has
for actions
that it is
here
liability
breaches
counties to enforce
not consented
which has
*3
duty,
may
deprive
except in its of
kind
such
the state
not
in
of this
cases
sued
Amendment
the courts
jurisdiction
of the United States
courts. The Eleventh
own
re-
Con
which it has under the
United
Constitution
to the
States
upon
protect
sov-
stitution
States
exclusive
and laws of the United
the
to
lied
Georgia
ereign jurisdiction
courts
to decide
of
of
eases where enforcement
the
Covington
sought.
cases of this kind.
such liabilities is
County,
Stevens,
1919,
Cir.,
Ala. v.
question we are
jurisdictional
On this
subject
county
F. 328.
to
Since the
Su-
the
precedent from
with a
furnished
and,
suit
a Federal
the
court4
since
Georgia.
Schwarcz
In
preme
of
Court
Highway Department,
State
held in
as
923,
County,
89 S.E.
211 Ga.
v. Charlton
case, supra,
the Schwarcz
raise
cannot
State
881,
where the
held that
2d
it was
raise,
county
issues which the
could not
in to
Highway Department was vouched
appellant
it follows
the
must fail
county
against
in an ac-
a
a suit
defend
jurisdiction.
its attack on Federal
Nei
litigation,
the
the
tion such as
agency,
ther the State of
nor its
party
suit
a
to the
was not
Highway Department,
par
the State
ais
though
required to defend
even
it was
ty and the Eleventh
no
has
Amendment
county and
of
name
the
for and in the
application.
might
judgment
any
answer for
to
county. From
By
rendered
by
the
the answer filed
opinion
quote:
Highway Department
the
we
the
and in
Grady
allegations
name of
the
Highway De-
“After
the
negligence
denied,
as to
and the al
partment was served with notice of
legations that
the decedent’s death re
pendency
the
county,
of
the
the suit
sulted from the condition of the
were denied. The
came
when it
into court to
measurement
right,
the suit it had the
defend
such that the
county,
the
of
name
the
to
within 100
file
feet of the
regarded
structure
pleadings
and all defensive
to
as a
the
part
of it under
Code,
the
would have
95-1001.
right
being
jury.
The case was tried before
had the
ject
a
to file.
Not
sub-
eye
being
was one
party
witness to the
to
made a
who
to the
accident
suit,
testified. This was Jimmie
it cannot defend the
Wood. He
action in
driving
testified that he was
laundry
its own name and raise
a
issues which
along
truck
the
could not raise.
If at the
observed
filing
Dickerson’s car
behind
time
him.
the suit
The rain
jurisdiction
slackened some
had
Wood
rolled down
signaled
defendant,
jurisdiction
his window and
pass.
party
Dickerson
to
filing
plea
was a
little
passed.
was not ousted
less than
away.
mile
jurisdiction
Dickerson
to the
Wood
speed
estimated
county,
Dickerson’s
or the
at not over
per
ground
45 miles
hour. Wood
on the
that the court had no
testified that at
point
later
measured
over it. Jurisdiction is
and found
to
bridge,
674 feet from the
determined as
those who are the
the Dickerson
car hit
parties
suit,
dip
high
some water in a
real or actual
to the
though
party
way,
road,
one who is not a
to the left of
“bobbled
ultimately
passing
he
be bound
to re-
of the car not
center
over the
spond
line,
right,
to the
rendered in
and back to
center
i
proceeding.”
straightened
up.”
he
back
Ga.
The witness con
881, tinued,
89 S.E.2d
“Within about 300—somewhere
Luning,
County
133 U.S.
10 S.Ct.
33 L.Ed.
Lincoln
an-
he
was shown
out
hit
that Dickerson’s car
went
around
foot
bridge,
The car
control
[puddle
re-
feet from the
water].
other one
point
back mained out of
feet
and then
control at a
back
the left
bobbled
coming
bridge,
from
right,
back
of control
was still out
to the
right
guard
scraped
guard rail,
scraped
when it
it
came over
regained
road,
rail,
If
pulled
hit some
never
control.
back on to the
County’s
just
water,
picked
factual
are cor-
like
inferences
—looked
rect,
up
had
picked
cause of
fatal
the car
accident
the front end of
origin
right
more than a
and headed
hundred feet
set it around to the left
bridge,
further,
bridge.” Elaborating
so,
and this is
into the
says,
*4
rail,
hitting
guard
whether the
defective
cause was a
he said that after
the
negligent driving by
or
de-
pulled
road
car
back on the
the
the Dickerson
cedent,
bridge
or
con-
and
both.
115
the
about
feet from
another
hit
until it
course
on its
tinued
any evi-
that
It is not here asserted
“about
road
depression in the
puddle in a
improperly omitted or exclud-
dence was
bridge, where-
the
from
50 foot”
40 or
was
contended
there
ed.
It is not
that
of
left
the
thrown to
was
upon
car
“the
refusing
giving
instruc-
error in
or
bridge.
was
Wood
the
hit
road” and
the
jury.
only question,
to
The
tions
the
bridge when
from the
feet
700
about
goes
jurisdiction,
suffi-
to the
aside from
speed
the
He estimated
it.
hit
Dickerson
shown,
ciency of the
The facts
evidence.
miles
45
about
car at
the
of
per
County insists,
rea-
the
such that
were
the
were not at
who
Witnesses
hour.
found that
sonable men could not have
esti-
accident
of the
time
at the
scene
direct
the death of the decedent was the
hour,
per
at
speed
60 miles
mated the
proximate
defective
result of a
hour,
per
and between
miles
50
bridge.
per
hour.5
miles
25 and
testimony
record
the
exhibited
The
showing
near
the shoulders
that
evidence
conflicting.
respects,
is,
material
in some
higher
pave-
than the
the
testimony
The uncontradicted
had collected
water
ment
might
drawn
inferences
different
that
heavy rain.
pavement
a
after
the
stood on
purpose
no useful
see
it. We
from
plaintiff’s
extending
the
evi-
case
review of the
of the
our
At the close
served
involuntary
typically
dis-
for
a case
moved for an
defendant
The
dence.
by
presented
The
jury.
was denied.
the
motion
conflicts
missal. This
The
a
jury’s
verdict
for a directed
resolved
the
moved
have been
defendant
evidence
and this
the
sides had rested
was such that
both
The evidence
after
verdict.
jury
reasonably
The
returned
found that
jury
was denied.
have
motion
could
$10,000
judgment was
under control
for
car was
a verdict
given
the Dickerson’s
puddle
defendant
for that amount. The
it encountered the
him at
time
judgment
for
non obstante
from
then moved
40 to 50 feet
water
of
alternative,
justified
or,
for a
proper.
also
veredicto
The evidence
per-
finding
puddle
denied.
trial. This motion was also
of water was
new
that the
sep-
these motions are
accumulate
reason of the
of
mitted to
The denials
arately
County
negligence
County’s
specified
The
error.
the maintenance
as
light
facts,
highway which,
statute,
in a
viewed
of
that
insists
widow,
part
bridge.
plaintiff
So
favorable
was treated
most
say
of the acci-
evidence
the cause
that
sustains the
we
demonstrate
nor its
we would draw differ-
Whether
was not
verdict.
dent
As
or reach a
of a hundred feet.
inferences
different con-
a distance
ent
within
analyzes
evidence,
prop-
in-
not material. For these
clusion is
regarded,
citations of
be otherwise
it
no extensive
author-
cannot
sists it
ositions
special
per
Georgia Code,
re
68-
absence of
hazards
miles
hour.
In the
speeds,
statutory
day
quiring
lower
light
speed
rural
limit
areas
rule
ity
required.
A
statement
terms
legislation,
are
I
precedents
think, clearly
and citations to some of
indicate an intention to
immunity
Indem-
American
waive its
be found in Great
from suit in
fed-
nity
Rose, Cir.,
F.2d
eral
court.
Co. v.
question
The
subsequent
constructed
to the Act of the
Assembly
General
our
appealed from has
page 39, incorporated into the
Code
approval and is affirmed.
Georgia of 1933 as section 95-1001 and
quoted
pertinent
part
in footnote 1
Judge
(concurring
RIVES, Circuit
opinion.
main
From the enact-
generally
specially).
ment of the Act of 1888 to
additional
an
concur,
state
would
I
alone was liable for
from
Eleventh
my opinion
the defective construction or mainte-
case, pre
not, in this
does
Amendment
public bridge.
possible
nance of a
No
ju
acquiring
from
court
federal
vent
doubt existed that the
could have
immun
settled
It is
risdiction.
been sued in a federal court. Lincoln
in a federal
ity
a state
County Luning, 1890,
may be
privilege
personal
*5
is a
363,
766;
S.Ct.
33 L.Ed.
Chicot
Barnard, 1883, 108
v.
Clark
waived.
Sherwood, 1893,
529,
v.
148 U.S.
13 S.Ct.
878,
L.Ed.
447,
27
436,
2 S.Ct.
U.S.
695,
546;
37 L.Ed.
Port of Seattle v.
lightly to be
waiver is
Such
Oregon
R., 1921,
56, 71,
& W.
237,
255 U.S.
* *
“*
clear declara
inferred, but a
41 S.Ct.
Grady County, Georgia v. Imogene Wright Dickerson
257 F.2d 369
5th Cir.1958Check TreatmentAI-generated responses must be verified and are not legal advice.