Collier v. Schoenberg

Court of Appeals of Georgia

Collier v. Schoenberg

106 S.E. 581, 26 Ga. App. 496, 1921 Ga. App. LEXIS 499

CourtCourt of Appeals of Georgia

DecidedMarch 16, 1921

Docket11772

StatusPublished

Cited by12 cases

This text of 106 S.E. 581 (Collier v. Schoenberg) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Collier v. Schoenberg, 106 S.E. 581, 26 Ga. App. 496, 1921 Ga. App. LEXIS 499 (Ga. Ct. App. 1921).

Pincite

Opinion

Jenkins, P. J.

In regard to the city ordinance referred to in the 3d headnote, the court charged the jury as follows: “There is a valid municipal ordinance of the city, which requires that any person or persons operating or driving any vehicle upon the streets and lanes of this city, when turning into a street to the right, shall keep close to the right curb, and when turning into the street to the left, shall swing wide of the left curb, passing beyond the center of the intersecting street. To violate that ordinance, he would be guilty of negligence as a matter of law; and if by reason of such a violation of the ordinance and such negligence a plaintiff or person is hurt or his property is injured, then there is a liability on the part of the person who did it, or whose employee did it. ” It is contended that this was error, because the ordinance referred to was not set out or admitted- by the pleadings, or introduced in evidence, and that consequently it was harmful error for the judge, as a matter within his judicial cognizance, to charge it. The court, in the order [498]*498overruling the motion for a new trial, stated that this ordinance was sufficiently pleaded for the court to take cognizance of it under section 4872 of the Code of Georgia (1882) (Code of Savannah, 1918, sec. 131), which provides: “All ordinances, bylaws, rules and regulations of said city, published by authority of said mayor and aldermen, and promulgated as such by said authority, shall be evidence in all the courts of this State to the same extent that laws of the State, as published by authority, shall be evidence of such laws; and when, in any case, an exemplification of any such ordinance, by-law, rule, or regulation, minute of council, or any paper of file in any of the departments of the government of said city may be required, the same may be authenticated under the official signature of the mayor or acting mayor, and the seal of said city.” In the pleadings the only reference to the ordinance is a meager statement in the petition that the defendant’s agent or servant was negligent. “ in making a short turn as he was about to turn west in crossing Drayton street, when he was running north, in violation of the city ordinance requiring a long turn under those circumstances.” This allegation was denied by the defendant’s answer, and there was no proof offered by either party as to the existence of any such ordinance.

The general rule is that courts cannot take judicial cognizance of municipal ordinances. Funk v. Browne, 145 Ga. 828 (2) (90 S. E. 64); Taylor v. Sandersville, 118 Ga. 63 (44 S. E. 845). That the general rule has' application to the ordinances of Savannah would seem to be- necessarily and clearly implied by the following cases. Pounds v. Central of Ga. Ry. Co., 142 Ga. 415, 417 (83 S. E. 96); Mayor &c. of Savannah v. Jordan, 142 Ga. 409, 414 (83 S. E. 109, L. R. A. 1915C, 741, Ann. Cas. 1916C. 240); McDermott v. Mayor &c. of Savannah, 18 Ga. App. 308, 309 (89 S. E. 348). ~We think, therefore, that the court erred in charging the unpleaded and unproved ordinance.

Judgment reversed.

Stephens and Hill, JJ., concur.

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Jenkins, P. J.

In regard to the city ordinance referred to in the 3d headnote, the court charged the jury as follows: “There is a valid municipal ordinance of the city, which requires that any person or persons operating or driving any vehicle upon the streets and lanes of this city, when turning into a street to the right, shall keep close to the right curb, and when turning into the street to the left, shall swing wide of the left curb, passing beyond the center of the intersecting street. To violate that ordinance, he would be guilty of negligence as a matter of law; and if by reason of such a violation of the ordinance and such negligence a plaintiff or person is hurt or his property is injured, then there is a liability on the part of the person who did it, or whose employee did it. ” It is contended that this was error, because the ordinance referred to was not set out or admitted- by the pleadings, or introduced in evidence, and that consequently it was harmful error for the judge, as a matter within his judicial cognizance, to charge it. The court, in the order [498]*498overruling the motion for a new trial, stated that this ordinance was sufficiently pleaded for the court to take cognizance of it under section 4872 of the Code of Georgia (1882) (Code of Savannah, 1918, sec. 131), which provides: “All ordinances, bylaws, rules and regulations of said city, published by authority of said mayor and aldermen, and promulgated as such by said authority, shall be evidence in all the courts of this State to the same extent that laws of the State, as published by authority, shall be evidence of such laws; and when, in any case, an exemplification of any such ordinance, by-law, rule, or regulation, minute of council, or any paper of file in any of the departments of the government of said city may be required, the same may be authenticated under the official signature of the mayor or acting mayor, and the seal of said city.” In the pleadings the only reference to the ordinance is a meager statement in the petition that the defendant’s agent or servant was negligent. “ in making a short turn as he was about to turn west in crossing Drayton street, when he was running north, in violation of the city ordinance requiring a long turn under those circumstances.” This allegation was denied by the defendant’s answer, and there was no proof offered by either party as to the existence of any such ordinance.

The general rule is that courts cannot take judicial cognizance of municipal ordinances. Funk v. Browne, 145 Ga. 828 (2) (90 S. E. 64); Taylor v. Sandersville, 118 Ga. 63 (44 S. E. 845). That the general rule has' application to the ordinances of Savannah would seem to be- necessarily and clearly implied by the following cases. Pounds v. Central of Ga. Ry. Co., 142 Ga. 415, 417 (83 S. E. 96); Mayor &c. of Savannah v. Jordan, 142 Ga. 409, 414 (83 S. E. 109, L. R. A. 1915C, 741, Ann. Cas. 1916C. 240); McDermott v. Mayor &c. of Savannah, 18 Ga. App. 308, 309 (89 S. E. 348). ~We think, therefore, that the court erred in charging the unpleaded and unproved ordinance.

Judgment reversed.

Stephens and Hill, JJ., concur.

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106 S.E. 581, 26 Ga. App. 496, 1921 Ga. App. LEXIS 499, Counsel Stack Legal Research, https://law.counselstack.com/opinion/collier-v-schoenberg-gactapp-1921.

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