Opinion
40675.
DECIDED JUNE 16, 1964. REHEARING DENIED JUNE 26, 1964.
Action for damages. Bibb Superior Court. Before Judge Long.
Harris, Russell Watkins, John B. Harris, Jr., Smith Harrington, Will Ed Smith, for plaintiff in error.
Hamilton Napier, contra.
1. A master and his servant may be jointly sued for damages resulting solely from the negligence of the servant. Southern R. Co. v. Grizzle, 124 Ga. 735 ( 53 S.E. 244, 110 ASR 191); Southern R. Co. v. Harbin, 135 Ga. 122 ( 68 S.E. 1103, 30 LRA (NS) 404, 21 AC 1011); Fowler v. National City Bank, 49 Ga. App. 435 ( 176 S.E. 113); Georgia Power Co. v. Blum, 80 Ga. App. 618 ( 57 S.E.2d 18); Graham v. Raines, 83 Ga. App. 581 ( 64 S.E.2d 98).
2. While Code § 94-1101 provides that "All railroad and electric companies shall be sued by anyone whose person or property has been injured . . . for the purpose of recovering damages for such injuries, in the county in which the cause of action originated . . ." and such provisions are jurisdictional in their nature and cannot be waived, Summers v. Southern R. Co., 118 Ga. 174, 175 ( 45 S.E. 27), Georgia, A., S., c. R. Co. v. Atlantic C. L. R. Co., 88 Ga. App. 426, 429 ( 76 S.E.2d 724), this Code section must be construed in connection with controlling provisions of the Constitution of this State which in Art. VI, Sec. XIV, Par. IV ( Code Ann. § 2-4904) provides that "Suits against joint obligors, joint promissors, copartners, or joint trespassers, residing in different counties, may be tried in either county." The words, "joint trespassers," in this constitutional provision has reference to all joint tortfeasors, Cox v. Strickland, 120 Ga. 104 ( 47 S.E. 912, 1 AC 870), Southern R. Co. v. City of Rome, 179 Ga. 449 ( 176 S.E. 7), Georgia Power Co. v. Blum, 80 Ga. App. 618 (1), supra, and a suit against a railroad and another as joint tortfeasors may be brought in the county of the residence of the individual tortfeasor; and, the fact that the individual tortfeasor is the servant of the railroad and the servant's negligence is the only negligence charged against the railroad, will not alter the rule. Central of Ga. R. Co. v. Brown, 113 Ga. 414 ( 38 S.E. 989, 84 ASR 250); Southern R. Co. v. Grizzle, 124 Ga. 735, supra; Georgia Power Co. v. Blum, 80 Ga. App. 618, supra.
3. While the Supreme Court in Southern R. Co. v. Harbin, 135 Ga. 122, supra, held that an action against a railway company and its servant to recover damages solely in consequence of the servant's misfeasance where a verdict is returned finding the servant not liable but finding in favor of the plaintiff against the railway company, such verdict should be set aside and a new trial granted, and did, after so holding, quote from several foreign cases, one of which stated, "But the defendants in this character of action are in no sense joint tortfeasors, nor does their liability to the plaintiff rest upon the same or like grounds," p. 125, there is no language in the case indicating that its holding was based upon any such theory, and we do not construe this case as holding that a servant co- defendant of a railroad whose negligence is the basis of the action against both is not a joint tortfeasor with the railroad within the meaning of the constitutional provision relating to venue.
4. Of the alleged releases from liability attached to the petition, one is identical with that construed adversely to the defendant railway company in Bohannon v. Southern R. Co., 97 Ga. App. 849 ( 104 S.E.2d 603), and we think properly so, insofar as it is applicable to the facts of this case, and therefore refuse to grant defendant's request to overrule this case. The other alleged releases relate only to damage by fire, (see, Davis v. Gossett Sons, 30 Ga. App. 576, 118 S.E. 773), and have no application to the present case where no fire was involved. The release in Blitch v. Central of Ga. R. Co., 122 Ga. 711 ( 50 S.E. 945), and in Dowman-Dozier Mfg. Co. v. Central of Ga. R. Co., 29 Ga. App. 187 ( 114 S.E. 815), related to injury caused by "fire or any other cause whatsoever" even if caused by negligence of the railway, and for this reason each is distinguishable from the releases in the present case.
5. Ordinarily, "Where the injury or damage complained of is solely to a building and not to the land the measure of damages is the cost of restoring the building to its original condition. Harrison v. Kiser, 79 Ga. 588 (8) ( 4 S.E. 320); Empire Mills Co. v. Burrell Engineering c. Co., 18 Ga. App. 253 (2) ( 89 S.E. 530); Central R. Bkg. Co. v. Murray, 93 Ga. 256 (4) ( 20 S.E. 129); Burke County v. Renfroe, 64 Ga. App. 395 ( 13 S.E.2d 194)." Edelson v. Hendon, 77 Ga. App. 395 (1) ( 48 S.E.2d 705). While there may be an exception to this rule where restoration to the condition at the time of destruction would "be an absurd undertaking" because of the dilapidated condition of the building, Mercer v. J M Transportation Co., 103 Ga. App. 141 (2) ( 118 S.E.2d 716), such reason does not appear in the present case, nor does the fact that the building damaged is upon leased land under a lease that may be terminated upon 60 days notice alter the rule.
6. Insofar as the petition shows, the primary physical condition causing the derailment of the train and damage to the plaintiff's building, the thrown switch, was not the fault of the defendants or plaintiff. The question therefore arises, as stated by the defendants in their brief, as to whether the alleged speed of the train and the failure to maintain a proper lookout, out, or either of them, is the proximate cause of the injury, or is the open switch the sole proximate cause of the injury? The defendant bases its contentions that the thrown switch was the sole proximate cause of the injury upon those cases holding that where the unforeseen act of a third person intervenes between the prior negligence of the defendant the first negligence cannot be said to be the proximate cause of the injury. Gulf Oil Corp. v. Stanfield, 213 Ga. 436 ( 99 S.E.2d 209); Andrews Co. v. Kinsel, 114 Ga. 390 ( 40 S.E. 300, 88 ASR 25); Wright v. Southern R. Co., 62 Ga. App. 316 (2) ( 7 S.E.2d 793); Artope v. Central of Ga. R. Co., 38 Ga. App. 91 ( 143 S.E. 127); Bowers v. Southern R. Co., 10 Ga. App. 367 ( 73 S.E. 677). Defendant relies particularly on the Bowers case in which it was held that the speed of the train was immaterial and that the criminal act of a third party in throwing the switch to the sidetrack was the sole proximate cause of the injury. Assuming, without deciding, that this case might control as to the speed of the train being immaterial, it does not control, nor do the other cited cases, as to the failure to maintain a proper lookout. In the present case, we have allegations of negligence occurring after the throwing of the switch, that is, that the defendant engineer and fireman, by the exercise of ordinary care, could have and should have seen the switch target indicating the thrown switch in time to have avoided the injury, and were negligent in not so doing. It thus appears that as to this allegation of negligence the thrown switch becomes a prior cause or the mere condition which made the injury possible, and that the negligence of the defendants was the intervening and efficient cause of the injury, even though such injury would not have happened except for the thrown switch.
7. The petition sets forth a cause of action and the trial court did not err in overruling the various demurrers insisted upon by the plaintiff in error in this court.
Judgment affirmed. Felton, C. J., and Frankum, J., concur.
DECIDED JUNE 16, 1964 — REHEARING DENIED JUNE 26, 1964.
Plaintiff brought a petition against the defendant railway company and its engineer and fireman, based upon alleged negligence of the engineer and fireman, to recover damages for the destruction of a building owned by plaintiff on the land of the defendant railway company occasioned by a train of the defendant railroad running through an open switch from the main line to a side track causing the train to jump the track and run into the building. Attached to the petition were various lease agreements between the plaintiff and the defendant railroad company, portions of which relating to indemnifications and release for damages, are copied in full at the conclusion of this statement of facts.
The engineer and fireman are residents of Bibb County and the injury occurred in Telfair County. The suit was brought in Bibb County. The defendant railway company filed various general and special demurrers including a demurrer on the ground that the courts of Bibb County had no jurisdiction of the case for the reason that the action should have been brought in Telfair County. After several amendments and renewed demurrers and additional demurrers, the trial court overruled the demurrers of the defendants. The defendants excepted to these rulings.
Extract from Exhibit "A", dated August 31, 1946: "That inasmuch as the use by the licensee of property of the railway company in exercise of privileges herein granted may create risks of fire or other loss, injury or damage which would not accrue except for such use, and the railway company would not grant said privileges except upon the condition that it shall be protected against any risk so created, the licensee, in consideration of said privileges, covenants hereby to protect and indemnify the railway company and save it wholly harmless from the consequences of any property loss or damage, death or personal injury whatever, accruing or suffered or sustained from or by reason of any act, negligence or default of the licensee, his agents, servants or employees, in or about or in connection with the exercise of the privileges hereby granted, or which may in any manner or to any extent be attributable thereto or to the presence of said building, or contents thereof, or any other property of the licensee upon the premises of the railway company, and whether or not negligence on the part of the railway company, its servants or employees, may have contributed to the loss, injury or damage, except that the licensee shall not be held responsible for any loss of life or personal injury, or damage to cars or property of the railway company, accruing from its own negligence, without fault of the licensee, his servants or employees."
Extract from Exhibit "B", dated March 1, 1947: "That he will indemnify and save harmless the railway company against any and all damage resulting from negligence of the party of the second part, his servants and employees, in and about said track and the right of way therefor; and furthermore, against any and all claims, demands, suits, judgments or sums of money accruing for loss or damage by fire communicated by locomotive engines or trains of the railway company to buildings or structures used by the party of the second part, or his tenants, in connection with the business served by said track, or to the contents of such buildings, or to other property stored by or with the consent of the party of the second part upon or near said track. The railway company hereby stipulates for this protection, as a condition of its agreement, herein expressed, to afford the above described terminal services and facilities to the party of the second part elsewhere than at its regular station."
Extract from Exhibit "C", dated January 30, 1958: "That it will indemnify and save harmless the railway company against any and all damage resulting from negligence of the party of the second part, its servants and employees, in and about said side track and the right of way therefor; and furthermore, against any and all claims, demands, suits, judgments or sums of money accruing for loss or damage to any goods, wares, merchandise or other property stored by or with the consent of the party of the second part upon or near said track, or in buildings or structures served by said track, by fire communicated by locomotive engines or trains of the railway company or otherwise. The railway company hereby stipulates for this protection, as a condition of its agreement, herein expressed, to afford the above described terminal services and facilities to the party of the second part elsewhere than at its regular station."