Opinion
34810.
DECIDED DECEMBER 2, 1953. REHEARING DENIED DECEMBER 16, 1953.
Action for damages. Before Judge Geer. Terrell Superior Court. June 27, 1953.
W. W. McKinnon, for plaintiff in error.
W. L. Ferguson, contra.
A county is not liable in damages for an assault committed by a county warden in the course of the county's grading and road work under a contract with the State Highway Department under Code (Ann. Supp.) § 95-2217. A county is not liable for any cause of action unless a statute provides therefor, or unless the cause of action arises out of the constitutional prohibition contained in Code (Ann.) § 2-301. Code § 23-1502. The present action does not come under any constitutional or statutory provision. The fact that the contract between the county and the State Highway Department provided that the county would indemnify the department against any claim or liability arising from or based on the violation of any laws, etc., would not give rise to a cause of action not authorized by the Constitution or acts of the General Assembly. The State Highway Department cannot legislate by contract without constitutional authority. Whether the action should fail for other reasons is not considered. See Hammond v. County of Richmond, 72 Ga. 188; Bailey v. Fulton County, 111 Ga. 313 ( 36 S.E. 596); Ware County v. Cason, 189 Ga. 78 ( 5 S.E.2d 339); Millwood v. DeKalb County, 106 Ga. 743 ( 32 S.E. 577); Purser v. Dodge County, 188 Ga. 250 ( 3 S.E.2d 574); Seymore v. Elbert County, 116 Ga. 371 ( 42 S.E. 727); Arnold v. Walton, 205 Ga. 606 ( 54 S.E.2d 424); Ayers v. Franklin County, 73 Ga. App. 207 ( 36 S.E.2d 110); Mills v. Chatham County, 27 Ga. App. 223 ( 107 S.E. 628); Decatur County v. Townsend, 46 Ga. App. 103 (1) ( 166 S.E. 774); Fulton County v. Gordon Water Company, 37 Ga. App. 290 (1) ( 140 S.E. 45); Newberry v. Hall County. 52 Ga. App. 472 (1) ( 183 S.E. 664). The court did not err in sustaining the general demurrer of Terrell County and in dismissing the action as to it.
Judgment affirmed. Sutton, C. J., and Quillian, J., concur.