City of Dalton v. Cochran , 80 Ga. App. 252 ( 1949 )

1. The motion to dismiss the bill of exceptions is without merit.

2. (a) Reasonable definiteness and certainty in pleading is all that should be required, and fictitious demands by special demurrer are not to be encouraged. Code (Ann.) § 81-101, catchword, "Certainty." The parts of the petition attacked by special demurrer in this case meet this requirement and the special demurrers are therefore without merit.

(b) The general demurrer is also without merit.

3. A copy of an alleged city ordinance accompanied by the certificate of the clerk that it is taken from the book of ordinances of the city is inadmissible in evidence when unaccompanied by an exemplification of an adopting resolution, pertinent portions of the corporate minutes, or other like matter showing that either the ordinance itself, or the book of ordinances from which it was taken, was in fact adopted by the city. Western Atlantic Railroad v. Peterson, 168 Ga. 259 (147 S.E. 513).

4. In the absence of timely written request to charge more fully the law relating to that degree of negligence on the part of the plaintiff which will bar his recovery, this subject was fairly and adequately covered by the charge of the trial court in the instant case.

5. Where the evidence, though conflicting, is sufficient to authorize the verdict, and where it has the approval of the trial court, it will not be reversed by this court upon the general grounds of a motion for a new trial.

DECIDED OCTOBER 27, 1949. Lloyd Cochran, a minor, by his next friend, Gordon Cochran, brought suit against the City of Dalton for certain injuries alleged in the petition to have been received as follows: that the plaintiff was riding his motorcycle at a rate of speed of not more than ten miles per hour when the motorcycle struck a described hole in a named city street in the City of Dalton; that the defendant knew or in the exercise of ordinary care should have known of the existence of the hole for six months or more; that the plaintiff had no knowledge thereof, and did not see it because it was necessary for him immediately prior thereto to come up a steep grade and across a ditch and that this required all his attention; that he could not avoid the hole because an automobile was parked in such a position that it was necessary for him to pass over the portion of the street in which the hole was located; that his motorcycle overturned after running into the hole and he suffered certain described injuries; that the defendant City of Dalton through its mayor and council and the members of its street committee had actual knowledge of the defect for at least two months prior to the accident; and that their negligence in not having the hole repaired was the cause of the accident.

Various demurrers were filed, which were subsequently overruled and exceptions thereto preserved. The city answered alleging that the plaintiff had been traveling at a speed of between 30 and 40 miles per hour, that this was a violation of a city ordinance and constituted negligence per se and negligence as a matter of fact; that the hole was not as described in the petition but that there were only three or four flecked places in the asphalt and that the injuries received, if any, were due entirely to the negligence of the plaintiff.

On the trial of the case the plaintiff introduced evidence from which the jury was authorized to find that there existed in the street in question certain holes, the largest of which was between four and five feet in circumference. Estimates of the depth of the holes varied from three to twelve inches. There was evidence that a pedestrian had previously been injured by stepping into one of these holes and that thereafter complaints had been made to the superintendent of streets and to one of the aldermen some two or three weeks prior to the accident. The plaintiff testified that in crossing an intersection (some 40 to 90 feet below the hole) he had had to negotiate a dip in the road constructed as a drainage ditch, followed immediately by a steep incline, and that he had turned into the street one block farther down after descending from an overhead bridge; that, due to these facts, he was traveling not over ten miles an hour and it was necessary for him to devote his entire attention to managing the motorcycle and for that reason he did not see the hole until he hit it. He also testified that he had turned left to pass the parked car which was between the hole and the south curb, and had passed the car with plenty of room in case anyone should be about to open the door and descend therefrom, and for these reasons was traversing the part of the street in which the hole was located.

The defendant introduced contradictory evidence as to the rate of speed and manner in which the plaintiff was driving. It also offered in evidence a certified copy of an alleged city ordinance establishing the speed limit within the city limits at 25 miles per hour on the streets and 10 miles per hour at intersections. This the judge refused to admit over objection. At the conclusion of the case a verdict was rendered in favor of the plaintiff, and the defendant filed its motion for a new trial on the general grounds, later amended by adding three special grounds. The exceptions here are to the overruling of the motion for a new trial as amended, and to the judgment of the trial court in overruling the demurrers to the petition as amended. 1. Counsel for the defendant in error filed his motion to dismiss the bill of exceptions upon the ground that Gordon Cochran, the next friend of the minor plaintiff and so named therein, is a necessary party to the bill of exceptions, and that no copy thereof was served upon him, nor was service thereof waived or acknowledged by him or anyone in his behalf. Counsel relies particularly upon Wiley v. Jones, 129 Ga. 635 (59 S.E. 709), in which case the acknowledgment of service for the named defendant heirs did not include the guardian ad litem. It was held that the guardian ad litem was a necessary party to the suit, and the bill of exceptions was dismissed. Council also points out that where a minor sues by prochein ami, the prochein ami and not the minor is the proper person upon whom the bill of exceptions should be served (Vickers v. Hawkins, 128 Ga. 794 (58 S.E. 44), and that the proper acknowledgment and waiver upon tender of a bill of exceptions under Code (Ann. Supp.) § 6-908.1 in no way dispenses with the subsequent service of a bill of exceptions after it has been certified by the trial court.Mauldin v. Mauldin, 203 Ga. 123 (45 S.E.2d 818). In this case the approval of the bill of exceptions as complete and correct was signed on July 11 by "M. C. Tarver, attorney for defendant in error." The service of the bill of exceptions was acknowledged on July 13 by "M. C. Tarver, attorney for Lloyd Cochran, defendant in error."

This court, in Morse v. Caldwell, 55 Ga. App. 804, 815 (191 S.E. 479) held as follows: "In a proceeding brought by a next friend or guardian on behalf of another, the suit is essentially that of the one for whom the suit is brought. Phillips v.Taber, 83 Ga. 565, 575 (10 S.E. 270). . . The next friend or guardian is only the representative of such person, and is an officer of the court. Sharp v. Findley, 59 Ga. 723, 729;Lasseter v. Simpson, 78 Ga. 61 (3 S.E. 243); Gentle v.Georgia Power Co., 179 Ga. 853, 854 (177 S.E. 690);Parrish v. Rigell, 183 Ga. 218, 223 (188 S.E. 15)."

The purpose of a guardian ad litem or next friend is to furnish a person sui juris to carry on the litigation for the minor's benefit. Vickers v. Hawkins, 128 Ga. 794 (supra). In the instant case it appears that the next friend, Gordon Cochran, is a party defendant named in the bill of exceptions, and that tender and examination of the bill of exceptions was acknowledged by his attorney, M. C. Tarver, for him. The subsequent acknowledgment of service of a copy of the said bill of exceptions by M. C. Tarver and the filing of briefs and argument of the case by him is sufficient to affirmatively show to this court that proper acknowledgment of service of the bill of exceptions was in fact made, and the appeal will not be dismissed for the merely technical reason that the service in the latter case was acknowledged in the name of the minor personally rather than in the name of his legal representative. This case is distinguished from Vickers v. Hawkins, supra, in that it did not appear in the latter case that the guardian ad litem was in fact represented as such in the appellate court by the attorney who acknowledged service on the bill of exceptions. Here it appears that, while service was properly acknowledged for the defendant in error, he was inadvertently designated as "Lloyd" Cochran rather than "Gordon" Cochran.

The motion to dismiss the bill of exceptions is overruled.

2. The defendant complains of the overruling of his general demurrer and also of his special demurrers to paragraphs 3 and 4 of the petition, which are in part as follows:

"3. The said Lloyd Cochran on the 21st day of July, 1948, at about 12:20 p. m. was driving his certain Harley-Davidson motorcycle, 1947 model, eastward along East Cuyler Street in the City of Dalton at a reasonable rate of speed, to wit, ten miles per hour, having crossed over South Spencer Street in said city when at a point 40 feet or 50 feet east of South Spencer Street and about 10 feet south of the curb on the north side of East Cuyler Street said motorcycle ran into a deep hole approximately 8 inches deep and 4 feet in circumference.

"4. An automobile was parked alongside the curb on said street immediately south of said hole and it was necessary in passing said automobile to pass over the portion of said street in which the said hole was located."

These paragraphs are sufficiently definite and certain to withstand the special demurrers interposed against them. Reasonable definiteness and certainty in pleading is all that should be required, and fictitious demands by special demurrer are not to be encouraged. See in this regard cases cited under Code (Ann.) § 81-101, catchword, "Certainty."

As to the general demurrer, the allegations of the petition regarding the character of the defect, the length of time it had been in existence, and knowledge thereof on the part of the governing authorities and their failure to repair, together with the necessary allegations as to damage were sufficient to raise a jury issue as to whether there had in fact been actionable negligence on the part of the city. See City of Rome v.Richardson, 62 Ga. App. 85 (7 S.E.2d 927); City ofBrunswick v. Glogauer, 158 Ga. 792, (124 S.E. 787).

There was no error in overruling the various grounds of demurrer.

3. The defendant offered in evidence a copy of an alleged city ordinance providing that no vehicle shall be driven on the city streets at a rate of speed greater than 25 miles per hour, certified as "a true and correct copy of an ordinance as the same appears of record in the book of ordinance of the City of Dalton" and signed by Guy W. Keister, Clerk, Mayor and Council of the City of Dalton, Georgia. This paper was excluded on objection and error is assigned to this ruling.

Code § 38-606 provides that exemplifications of the "records or minutes of municipal corporations of this State" shall be admitted in evidence when certified by the clerks or keepers of such records. In the present instance, the exemplification was merely stated to be a correct copy of an ordinance "as the same appears of record in book of ordinance of City of Dalton." Had the book of ordinances been introduced it would have fallen squarely under the rule of law that such a book or compilation is inadmissible unless accompanied by the adopting resolution. SeeWestern Atlantic Railroad Co. v. Hix, 104 Ga. 11 (30 S.E. 424); Western Atlantic Railroad Co. v. Swigert, 57 Ga. App. 274 (195 S.E. 230). The fact that the clerk certifies that the alleged ordinance is an exemplification taken from such a book would give it no greater dignity than had the book itself been introduced. The Code section refers to the "records or minutes" of corporate municipalities, and the ordinance, without proof of its validity in the form of the proper records or minutes accompanying the same, would be inadmissible in evidence. See also Western Atlantic Railroad Co. v. Peterson,168 Ga. 259 (147 S.E. 513). The evidence having been properly excluded on objection, there was no error in the charge that there was no evidence before the jury as to the speed limit within the City of Dalton, as complained of in ground 2 of the amended motion for a new trial.

Grounds 1 and 2 of the amended motion are therefore without merit.

4. Error is assigned on the failure of the court, without request, to charge the jury on the law relative to the plaintiff's contention that the injuries complained of resulted solely from the plaintiff's own negligence as a matter of fact in operating his motorcycle at a high and dangerous rate of speed. The court fully stated the defendant's contentions in this regard as set out in the answer, and further charged that, if the jury found the plaintiff had failed to exercise ordinary care, he could not recover. He also charged the law as to contributory negligence. In the absence of written request, therefore, it appears that this subject was sufficiently covered. There is no merit in the third ground of the motion for a new trial as amended.

5. The evidence, although conflicting, was sufficient to authorize the jury to find for the plaintiff under one theory of the case, and their verdict, having the approval of the trial court, will not be reversed upon the general grounds.

Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur.