Summary
In City of Atlanta v. Cherry, 84 Ga. App. 728 (67 S.E.2d 317), where the same joinder occurred, only damages were sought, and a special demurrer challenging the petition on the ground of misjoinder of parties defendant was held meritorious.
Summary of this case from Chronister v. City of AtlantaOpinion
33600, 33601, 33602, 33603, 33604.
DECIDED OCTOBER 17, 1951.
Damages; from Fulton Superior Court — Judge Wood. March 7, 1951.
J. C. Savage, J. C. Murphy, J. M. B. Bloodworth, John E. Feagin, Henry L. Bowden, for City of Atlanta.
Gambrell, Harlan Barwick, M. Cook Barwick, James C. Hill, for Southern Airways and Eastern Air Lines.
Elbert P. Tuttle, Sutherland, Tuttle Brennan, for Capital Airlines, et al.
J. Winston Huff, Powell, Goldstein, Frazer Murphy, for Delta Air Lines.
William G. McRae, Eugene R. Simons, for Cherry.
The court erred in overruling the special demurrers of each of the defendants which raised the questions of misjoinder of parties and causes of action.
DECIDED OCTOBER 17, 1951.
Charles E. Cherry sued the City of Atlanta, Southern Airways Inc., Eastern Air Lines Inc., Delta Air Lines Inc. and Capital Air Lines Inc., by petition which, as finally amended, sought to recover damages from the defendants for the establishment and maintenance of a permanent nuisance. The petition alleges that petitioner has been damaged by the defendants "by reason of the following facts, circumstances and acts of said defendants, they being jointly and severally tort-feasors in the premises and acting according to and in pursuance of a common concerted plan, scheme, and device, jointly and severally, to establish, maintain and operate one East-West runway at the Municipal Airport, formerly Candler Airport, for private and proprietory purposes . . that during the year 1949 the defendant, City of Atlanta, in order to increase and expand the facilities of the Municipal Airport, extended the East-West runway of said airport for the common purpose, device and plan to use said runway to provide adequate facilities for the landing and taking off of the larger type airplanes used by said other defendants. . . Your petitioner shows that the common purpose, device and plan was that the City of Atlanta, acting under authorization of the General Assembly, as granted by the act of August 23, 1927 (Georgia Laws 1927, pp. 779, 780), did establish said airport and used same for commercial and other purposes, to the end that aviation activities and transportation could be provided for said City. . . Your petitioner shows that the defendant, City of Atlanta, expanded said airport by constructing an extension of the East-West runway of said airport in the year 1949 in accordance with the said common plan, device and purpose. . . Your petitioner shows that the defendant, City of Atlanta, does operate, maintain, supervise and control all operations of said airport, including the extended East-West runway, and permits or denies private individuals, corporations and others the use of said airport, including the said East-West runway, on terms fixed by said City of Atlanta. . . Your petitioner shows that the other defendants hereto enjoy the rights of use, ingress, degrees, and accommodations of said airport, including said East-West runway, by rentals, fixed, demanded and paid to said city in the form of rentals or other license and fees, and upon payment of same as fixed by the City of Atlanta, and upon complying with the regulations and requirements established by said city. . . That on the night of November 24, 1949, the other defendants began using said East-West runway by landing and taking off their airplanes pursuant to the common plan, device and purpose of said other defendants and the said defendant, City of Atlanta. . . That said runway is used in the landing and taking off said defendants' airplanes on each and every day, and each and every night; that the wind blows in certain directions, to-wit, easterly to westerly or westerly to easterly directions. . . That on each and every day and night that said runway is used defendants' airlines' planes land and take off from said runway continuously, constantly, and on occasions too numerous to enumerate. . . That all the landings and taking offs by defendants herein are in pursuance of the common plan, device and purpose of said defendants and the said defendant, City of Atlanta. . . That in the said taking off and landing on said runway the airplanes of the said defendants pass directly over the property of your petitioner. . . That said airplanes land in such a manner on said runway that the said airplanes pass over your petitioner's property at a distance of from fifty to seventy-five feet. . . That said airplanes take off in such a manner from said runway that said airplanes pass over your petitioner's property at a distance of from fifty to seventy-five feet; and said airplanes take off in such a manner that said airplanes are generally and usually unable to attain a greater height over your petitioner's property. . . That the said airplanes pass over your petitioner's property in such a manner that the said airplanes create great and horrible noises which are constantly maintained by the engines which cause their operation. That said noises disturb the peace of your petitioner and his family, their happiness and the right to enjoy their said home. They are harassing, disturbing, constantly loud, and unpleasantly grating on the hearing. They disturb the sleep, rest, quietude and sense of peace of security of your petitioner and his family, and is a constant nuisance, and is injurious to petitioner and his family. . . That the said airplanes pass over your petitioner's property in such a manner that the said airplanes create great and terrific vibrations to your petitioner's home and property. That said vibrations rattle the windows and rock the furniture in your petitioner's home, and shake the home of your petitioner; that they disturb the sleep, rest, quietude and sense of peace and security of petitioner and his family, and is a constant nuisance and is injurious to your petitioner and his family. . . That the said airplanes pass over your petitioner's property in such a manner that the said airplanes create air currents which blow large gusts of dust in and about your petitioner's home; that the said dust permeates the air and makes it unwholesome, unpleasant, filthy and unhealthy for the use of petitioner and his family. It is annoying, unpleasant, injurious and hurtful to them in taste, smell, hearing, seeing, and feeling; it renders the atmosphere in and around petitioner's home unsuitable for a home and for his use and pleasure, and for the use and pleasure of his family, and makes unsuitable said home for purposes and necessities. It is unwholesome, unpleasant, filthy and unhealthy to them, and constitutes a continuing nuisance to your petitioner and his family. . . That said dust in said quantities is injurious to the health of petitioner and his family, in that it is injurious to their lungs, to their eyes and to their health in general. . . That said acts by said defendants were wilful, malicious, and done with intent to harm your petitioner and his family, and were done with wanton disregard for due process of law." The court overruled the general demurrers of the defendants, overruled certain special demurrers and sustained certain special demurrers with leave and time within which plaintiff might amend. The defendants filed exceptions pendente lite to these rulings. The plaintiff amended and the defendants renewed their demurrers and demurred to the petition as amended. The court overruled the renewed general demurrers, sustained certain special demurrers and overruled some. The defendants except to the overruling of the special demurrers to the petition as amended and on their exceptions pendente lite to the overruling of the general and special demurrers to the original petition.
1. In the original opinion we ruled that the exceptions to the overruling of the general demurrers and special demurrers to the original petition, which included the demurrers for misjoinder of parties and causes of action, were premature. On rehearing in cases numbers 33601, 33602, and 33603, and on the court's own motion in cases numbers 33600 and 33604, the ruling and judgment of affirmance in each case is vacated for the reason that the amendment striking the prayers for equitable relief opened the case for renewal of demurrers as will be explained at the conclusion of the opinion, and the court will now pass on the questions raised by the demurrers as to misjoinder of parties and causes of action, in view of which it will not be necessary to pass on any of the other questions raised.
2. The basic allegation in the petition as to concert of action by the defendants, to which all subsequent related allegations refer, is that the defendants acted in accordance with and pursuant to a "common concerted plan, scheme and device . . to establish, maintain and operate one East-West runway." It is elsewhere alleged that the airplane companies each operated planes over the plaintiff's property at low height so as to injure him, but it is not alleged that there was any concert of action in operating the planes in a way that would injure the plaintiff unless it is contained in the above-quoted allegation. We do not think that the above-quoted allegation charges any concert of action otherwise than to establish, maintain and operate the East-West runway. Nor does the new paragraph 24 substituted by amendment for the original paragraph of the same number cure such defect in the petition. The new paragraph 24 is as follows: "That the said defendants' airplanes take off from the said East-West runway and pass over your petitioner's property at an altitude usually from fifty to seventy-five feet; and said runway is so constructed and maintained by the City of Atlanta that such altitude is incident and necessary to the operation of airplanes by pilots taking off from said runway operating larger planes of the defendant airlines." This paragraph does not amount to charging that the airplane companies by any kind of concert of action co-operated with the city in constructing the particular runway with the knowledge that it would result in low-flying over plaintiffs' property, or that after the city so constructed the runway the airplane companies by concerted action or agreement used the runway in low flights over plaintiffs' property. The petition, properly construed, simply means that the city constructed the runway so as to require the low flights and that each airplane company used the alleged defectively constructed runway separately and independently, without concert or common design. In order to state a cause of action against the defendants jointly, there would have to be concerted action in operating in such a way as to injure plaintiff. The defendants could have had the concerted plan to establish and maintain the runway in a legal and proper manner, and yet, if each airplane company separately and on its own accord, and without the knowledge or consent of the other defendants, including the City of Atlanta, operated its planes to the injury of plaintiff, there would be no joint liability unless the acts of each combined naturally and directly to produce a single injury, a fact which is not shown or alleged. Since the petition does not allege a concert of action in operating on the runway so as to injure the plaintiff and does not allege a conspiracy to so operate it, and does not allege any fact which would make each defendant liable for the acts of the others, the action against the defendants jointly will not lie. United Cigar Stores Co. v. Ga. Ry. Power Co., 27 Ga. App. 198 ( 107 S.E. 781); Brooks v. Ashburn, 9 Ga. 297; City of Albany v. Brown, 17 Ga. App. 707 ( 88 S.E. 215); Schneider v. City Council of Augusta, 118 Ga. 610 ( 45 S.E. 459); Osborn v. Deboard, 115 Ga. 500 ( 41 S.E. 985); Armstrong v. So. Ry. Co., 29 Ga. App. 418 ( 116 S.E. 31); Scearce v. Mayor c. of Gainesville, 33 Ga. App. 411 ( 126 S.E. 883); McGinnis v. Shaw, 46 Ga. App. 248 ( 167 S.E. 533); 46 C.J. 749; 39 Am.Jur. § 38, p. 318. There were no special demurrers for misjoinder of parties defendant and causes of action in Thrasher v. City of Atlanta, 178 Ga. 514 ( 173 S.E. 817), and in Delta Air Corporation v. Kersey, 193 Ga. 862 ( 20 S.E.2d 245). Since the petition as originally brought sought to join the defendants who, under this court's construction of the petition, acted independently, under the allegations, and prayed equitable relief, the striking of prayers for equitable relief was a material amendment and subjected the amended petition to special demurrer for misjoinder of parties and causes of action. It is permissible in a proper case to join defendants in equity to enjoin the continuance of a nuisance even though the defendants acted independently and without concert, design or common purpose, whereas it is improper to join them in an action at law for damages. 39 Am. Jur. pp. 437-438, § 167. Inasmuch as the court erred in not sustaining the special demurrers of the several defendants as to misjoinder of parties and causes of action, it is unnecessary to pass on the other questions involved because this court cannot predict what turn the case will take. In the event the case shall remain in court as to any one or all defendants, the final exceptions in each case may be treated as exceptions pendente lite to preserve the respective exceptions of the parties.
The court erred in overruling the special demurrers of each defendant raising the questions of misjoinder of parties and causes of action. Judgment reversed in each case. Sutton, C.J., and Worrill, J., concur.