10 S.E.2d 636 | Ga. Ct. App. | 1940
Lead Opinion
The court erred in sustaining the demurrer to the petition.
It will be noted that this court in Laster v. MarylandCasualty Co.,
The able trial judge, in his order requiring the plaintiff to amend or subject her suit to dismissal because the driver of the truck was joined as a party defendant, said that in the absence of express provision in the statute, authorizing the joinder of any but the motor carrier and the insurance carrier, the amendment can not *883
be construed to change the general and settled law of this State as to joinder of actions. In construing any statute the cardinal object to be kept in mind is the intention of the legislature, if that intention can be ascertained. "When the intention is ascertained, it governs, and the mere letter of a statute must yield to the spirit. . . There should be a reasonable construction, equally removed on the one hand from that extreme strictness which would make it unpopular or ridiculous and difficult of enforcement, and, on the other, from that latitude which would render it ineffective." Roberts v. State,
The present action was for alleged negligence of the driver of the motor vehicle. The plaintiff could have sued the driver alone, or the motor carrier alone, or she could have sued them jointly. She could have sued the insurance carrier alone or, as authorized by the act, she could have joined the motor carrier and the insurance carrier in the same action, irrespectively of whether it sounded in tort or in contract. The negligence relied on in each of the actions would have been the negligence of the driver of the motor vehicle. The driver himself was liable because of his own negligence. The motor carrier was liable because of the doctrine of respondeat superior. The insurance carrier was liable because it assumed by contract a liability for the negligence either of the motor carrier or of the agent or driver. Unless a cause of action is made out against the driver, under the allegations as here shown, there can be no recovery against any one. As stated above, the motor carrier is liable under the doctrine of respondeat superior. See Southern RailwayCo. v. Harbin,
Judgment reversed. Broyles, C. J., and MacIntyre, J.,concur.
Addendum
Counsel for the movant contends that separate acts of negligence were alleged against the motor carrier, in which the driver had no part; and that for this reason the opinion is based on a wrong assumption. A careful reading of this petition convinces us that every act of negligence alleged against the motor carrier is also alleged against the driver, Duhart. Even so, we have expressly held that unless Duhart, a resident of Houston County, was liable, the motor carrier, a resident of Bibb County, could not be held liable in a suit filed against it in Houston County, In a suit filed in Houston County against a citizen of Bibb County because of alleged joint negligence with a citizen of Houston County, no judgment therein may be predicated against the citizen of Bibb County alone. Unless the liability is joint, the court loses jurisdiction of a citizen of another county.
Rehearing denied. Broyles, C. J., and MacIntyre, J., concur.