Opinion
36902.
DECIDED MARCH 21, 1958.
Tort; damages to realty. Butts Superior Court. Before Judge Brown. June 27, 1957.
Eugene Cook, Attorney-General, Paul Miller, E. J. Summerour, Assistant Attorneys-General, W. M. Redman, for plaintiff in error.
Alfred D. Fears, Ernest M. Smith, Ray M. Tucker, Hurt, Gaines, Baird, Peek Peabody, contra.
In the present case, where the State Bridge Building Authority contracted for the construction of a bridge on a right-of-way which it owned, Butts County is not liable for damages resulting from its construction.
DECIDED MARCH 21, 1958.
Mrs. Gay Pitts filed a suit against Butts County and Craddock Durham and G. W. Burtz, d/b/a G. W. Burtz Construction Company.
The petition alleged in part: that the State Highway Department of the State of Georgia and the County of Butts have engaged since about January 15, 1955, in the construction of a concrete bridge across Sandy Creek at Indian Springs in Butts County, where Georgia Highway No. 42 spans Sandy Creek; that the defendants, Durham and Burtz, were the servants and agents of Butts County, and of the State Highway Department; that the bridge was being constructed by Burtz, and Craddock Durham was his general superintendent under the guidance and supervision of the County of Butts and of the State Highway Department; that the petitioner had upon her lands in the county adjacent to the highway at the bridge a one-story frame building known as "Pitts Casino" which building was used for wholesome and lawful recreational purposes and included therein a soft drink fountain, a restaurant, six bowling alleys, a shooting gallery and other businesses; that the building was located on the east side of the creek adjacent and parallel to the east side of the highway and within three or four feet of the northern end of the bridge; that in the construction of the bridge the "defendants, their servants, agents and employees have since the beginning of the construction on or about the 15th day of January 1955 constantly used heavy machinery and have repeatedly blasted earth and granite rock or rocks at the location with heavy and dangerous charges of dynamite or other explosives and that these acts have been done in close proximity of the building and in some instances as close as four or five feet; that the acts commenced on or about January 15, 1955, and have continued since that date, and have repeatedly with great force and violence jarred and shaken the building until it has been knocked, jarred and shaken loose from its foundation all to the injury and damage of petitioner"; that the reasonable value of the building before the acts complained of was $25,000, and that the value at the time of bringing this action, was not over $10,000; that the aforesaid acts constituted the appropriation for public use of her property without condemnation or payment therefor, in violation of Section 2-301 of the Code of Georgia; she requested that the court require the defendant, Butts County, to vouch the State Highway Department of Georgia under the provisions of Code § 95-1710; that she have judgment of $15,000 against the defendant, Butts County.
Butts County vouched in the State Highway Department to defend the suit and be responsible for any damages recovered against the county.
The State Highway Department then undertook to defend the suit, filing several general demurrers which were overruled. A stipulation of fact was entered into by the parties to the suit. The stipulation provided in part that: "Contract, copy attached, dated January 3, 1955, between State Bridge Building Authority and G. W. Burtz for the construction of a new bridge at Big Sandy Creek at Indian Springs and 321 miles of graded and paved approaches; Bond of the State Bridge Building Authority of Georgia with G. W. Burtz, principal, and National Surety Corporation, surety, in the sum of $208, 776.41; that prior to January 3, 1955, the State Highway Department of Georgia acquired rights-of-way for the bridge over Big Sandy Creek and its approaches; that part of the right-of-way was included in a previously existing county road which had been previously taken over by the State and incorporated in the State Highway system as Highway No. 42; additional said right-of-way having been recently acquired, prior to January 3, 1955, through deed and condemnation secured in the name of the State Highway Department of Georgia by Butts County; that prior to January 3, 1955 said right-of-way was, under authority contained in the Bridge Building Act, conveyed by the Governor to the Bridge Building Authority; and fee-simple title to such right-of-way is now vested in that Authority, for the purposes and subject to the limitations of the act creating the State Bridge Building Authority, approved March 25, 1953 (Ga. L. 1953, Jan.-Feb. Sess., p. 626); that concurrently with or immediately after such conveyance of title, the Bridge Building Authority leased the said project and right-of-way to the State Highway Department of Georgia at an agreed annual rental sufficient to pay off bonds issued for the purpose of securing money to construct said bridge; said lease providing that at its termination title would vest in the State Highway Department of Georgia to the new bridge and its approaches; that the State Highway Department drew the plans for such bridge; and employees of the State Highway Department, acting in compliance with the contract of the Bridge Building Authority with the construction company, and under the authority of the Bridge Building Act, supervised the construction and saw to it that specifications thereto were met; said employees were paid their regular salaries as employees of the State Highway Department from State Highway funds; that the Bridge Building Authority has adopted as its specifications for bridge and approach work the standard specifications of the Highway Department; that said specifications were by reference made a part of the contract above referred to; that such specifications will be made available on the trial of the case, in order that pertinent paragraphs or portions thereof might be used by either side."
On the trial the jury returned a verdict against the defendant, Butts County. Butts County made a motion for a new trial which was denied. It excepts here to the overruling of its general demurrers and motion for a new trial.
The judgment of dismissal by this court ( Butts County v. Pitts, 96 Ga. App. 750, 101 S.E.2d 615), having been reversed by the Supreme Court ( Butts County v. Pitts, 214 Ga. 12, 102 S.E.2d 480), the judgment of dismissal has been vacated, all judges concurring, and the case will now be decided on its merits.
1. The defendants insist that the suit was prematurely filed because the bridge has not been completed, and cite as authority for this contention Code § 95-1712 which provides: "Highway Department not liable for damages on additional State-aid roads until construction begins. — The State Highway Department shall not be liable under existing laws for damages accruing on such additional State-aid roads taken into the system under this law, until construction thereon has been begun under the direction of the State Highway Board and such additional State-aid roads opened to traffic by the said Board."
The above section applies to roads which are constructed by the State Highway Department. In the present case the road had already been constructed and was open to the public at the time it was taken into the State highway system as a State-aid road; therefore, the above Code section is not applicable to the present case.
The petition alleged that the State Highway Department and Butts County were jointly constructing the bridge, and as a result the plaintiff's property was damaged. The petition set forth a cause of action, and the judge did not err in overruling the general demurrer. Code § 95-1710; State Highway Board v. Perkerson, 185 Ga. 617 ( 196 S.E. 42); State Highway Board v. Hall, 193 Ga. 717 ( 20 S.E.2d 21); Waters v. DeKalb County, 208 Ga. 717 ( 69 S.E.2d 274); Florida State Hospital for the Insane v. Durham Iron Co., 194 Ga. 350, 353 ( 21 S.E.2d 216).
2. The stipulation of fact reveals that Butts County conveyed a fee-simple title to the right-of-way to the State Highway Department who in turn conveyed the title to the Governor. The Governor then conveyed the property to the State Bridge Building Authority, who leased the property to the State Highway Department. The State Bridge Building Authority contracted with G. W. Burtz Construction Company to construct the bridge. The plans and specifications of the State Highway Department were adopted by the State Bridge Building authority and the State Highway Department's employees were also used for inspection purposes.
While it is true that a county is liable for acts of the State Highway Department in the construction of a bridge on a State-aid road, though the county is in no way connected with its construction, this liability arises by a specific statute. Code § 95-1710; Taylor v. Richmond County, 185 Ga. 610 ( 196 S.E. 37).
There is no statute imposing liability upon the county for acts of the State Bridge Building Authority, a corporation which may sue and be sued. Code § 95-2302. In the present case the State Bridge Building Authority owned the right-of-way and contracted for the bridge's construction. Neither Butts County nor the State Highway Department authorized the bridge's construction nor shared in its cost.
Under the facts as stipulated in this case the evidence demanded a verdict that Butts County and the State Highway Department were not liable for any damages resulting from the construction of the bridge.
While G. W. Burtz Construction Company may have been liable for the damage, there was no prayer for damages against this defendant, and therefore any verdict against them would have been unauthorized. Evans v. Thompson, 143 Ga. 61 ( 84 S.E. 128); Greenwood v. Greenwood, 173 Ga. 343 ( 160 S.E. 392); Ellard v. Simpson, 166 Ga. 278 ( 142 S.E. 855).
The evidence demanding a verdict for the defendants, the trial judge erred in denying the motion for new trial.
Judgment reversed. Felton, C. J., Gardner, P. J., Townsend, Carlisle and Nichols, JJ., concur.