Opinion
31063, 31064, 31065.
DECIDED NOVEMBER 21, 1945. REHEARING DENIED DECEMBER 5, 1945.
Damages; from Johnson superior court — Judge Camp. August 19, 1945. (Application to Supreme Court for certiorari.)
W. C. Brinson, Will Ed Smith, for plaintiffs in error.
J. Roy Rowland, E. L. Rowland, H. T. Hicks, contra.
1. In the absence of allegations charging a county with negligence in the maintenance of a defective bridge, the petition does not state a cause of action against the county, where it is alleged only that the county was negligent, through its contractor, in removing a bridge for the purpose of replacing it, in failing to place signs to warn travelers that the bridge was out, and in not barricading the highway.
2. Where a tort action is filed against joint defendants, a resident and a non-resident, and the petition fails to state a cause of action against the resident defendant, the court has no jurisdiction of the non-resident defendant, where jurisdiction of the non-resident is dependent solely on participation in the joint act or acts complained of.
DECIDED NOVEMBER 21, 1945. REHEARING DENIED DECEMBER 5, 1945.
Mrs. T. L. Martin, Roy Hodges, and H. T. Hicks, as next friends for their minor sons, brought their separate suits in the superior court of Johnson County against the joint defendants, Johnson County, the State Highway Department of Georgia, and Coffee Construction Company, a corporation doing business and having an agent and office in Johnson County. The petitions were subsequently dismissed by the plaintiffs as to the State Highway Department, and amended to allege that, instead of being a corporation, Coffee Construction Company was a partnership, composed of L. M. and C. G. Coffee, residents of Dodge County. The several suits involve the same facts and transactions, and a determination of one will be a determination of the others, and therefore they will be treated together. It is alleged that, while Fred Hodges, Hoyt Martin, and Arnold Hicks, all minors, on January 21, 1942, were traveling on the Bee Line Highway in Johnson County in an automobile, they came suddenly over an abrupt hill driving at a speed of not more than thirty miles per hour, and saw that the bridge ordinarily spanning Ford's Creek in Johnson County was out; and, although the automobile was equipped with good brakes which were immediately applied, the plaintiffs could not stop the automobile and its momentum carried it into the culvert or concrete construction which was built over the said stream as a bridge, and the automobile was completely wrecked and the plaintiffs were injured, for which they seek to recover damages. It is further alleged that Coffee Construction Company, with the full knowledge and consent of Johnson County, were either repairing or rebuilding said bridge, and had taken the old wooden bridge, which had been there ten or fifteen years, completely out, and had constructed on the bottom of the creek bed at the east bank of the stream, which bank of the stream the plaintiffs were approaching, a concrete structure which the plaintiffs mistook to be one end of a concrete bridge; that the concrete structure was the full width of the old bridge, being about six or eight inches thick and some seven or eight feet tall and level with the top of the highway; that the bank of the stream slanted upward from the bottom of said concrete structure at an angle of some thirty-five or forty degrees, being a steep bank some ten or twelve feet from the top of the highway, which left a space some eight or ten feet wide and about seven or eight feet deep from the top of the road bed to the bottom of the said concrete structure. The plaintiffs allege that the defendants were negligent in the following particulars: (1) in failing to barricade the road at any point from the direction in which the plaintiffs were traveling; (2) in failing to place any sign on the highway to warn the plaintiffs that the bridge was out; and (3) the defendants wilfully, knowingly, and negligently maintained a death trap upon said highway which caused the alleged injuries. Coffee Construction Company complain in their bill of exceptions of the ruling of the lower court in making them party defendants, upon which ruling exceptions pendente lite were duly filed, as they were not residents of Johnson County, and all of the defendants except to the overruling of their demurrers.
1. Assuming for the sake of argument that the allegations show that the completed new structure would have been a bridge under the law, the petition does not state a cause of action against Johnson County. "A county is not liable to suit unless made so by statute." Code, § 23-1502; Purser v. Dodge County, 188 Ga. 250 ( 3 S.E.2d 574). The provision of law under which it is contended that the county is liable is that part of the Code, § 95-1001, which provides: "Provided, however, that in every case the county shall be primarily liable for all injuries caused by reason of any defective bridges, whether erected by contractors or county authorities." The petition alleges that the old bridge had been completely removed, and the construction of the new bridge had barely been begun. There is no liability so far as defectiveness in the old bridge is concerned, because there was no old bridge in existence. There is no liability so far as defectiveness of the new bridge is concerned, because the new bridge had not come into existence. One concrete support is no more a bridge than a foundation is a house. The statute contemplated only completed structures so far as liability for defective conditions are concerned. There is no statutory liability for the county's failure to erect guards, rails, or warning signs. Meriwether County v. Gilbert, 42 Ga. App. 500 ( 156 S.E. 472); Warren County v. Battle, 48 Ga. App. 240 ( 172 S.E. 673). The case last above cited does not hold contrary to what is here held, for the reason that in that case the old bridge had not been entirely removed and the remaining part of the original bridge was being repaired. The same is true of the case of Pike County v. Matthews, 49 Ga. App. 152 ( 174 S.E. 642), the record in which shows the same facts as appear in Warren County v. Battle, supra. The ruling in Havird v. Richmond County, 176 Ga. 722 ( 168 S.E. 897), is not contrary to what is here ruled, because in that case there was a barricade on an abutment to the bridge (as held by the court in the same case, 47 Ga. App. 580, 171 S.E. 220), and the injured person was injured by running into the barricade which was negligently maintained. The liability must be based on negligence in the maintenance of the old bridge or a new bridge. Warren County v. Evans, 118 Ga. 200 ( 44 S.E. 986). Neither is alleged.
2. Since no cause of action is stated against Johnson County, it follows that the court had no jurisdiction of the partnership, the members of which reside in Dodge County. Peake v. Stovall, 50 Ga. App. 595 ( 170 S.E. 287), McCommon v. Martin, 33 Ga. App. 392 ( 126 S.E. 272), Hamilton v. DuPre, 111 Ga. 819 ( 35 S.E. 684), Central of Georgia Ry. Co. v. Brown, 113 Ga. 414 ( 38 S.E. 989, 84 Am. St. R. 250), Warren v. Rushing, 144 Ga. 612 ( 87 S.E. 775), and Evans v. Garrett, 72 Ga. App. 846 ( 35 S.E.2d 387).
The court erred in overruling the demurrers of Johnson County and of Coffee Construction Company, a partnership. Under these rulings, it is unnecessary to decide whether the partners could be made parties by amendment after the filing of the original petition against other defendants.
Judgments reversed. Sutton, P. J. and Parker, J., concur.