Summary
In Holland v. City of Calhoun, 114 Ga. App. 51, 53 (150 S.E.2d 155), we held that because of the City Council's dealings with the claimant, the City was estopped to deny that it had proper notice of the claim; but the Supreme Court reversed that decision and held that public officials could not act outside their powers, and that the City Council had "no right to waive the requirements of [OCGA § 36-33-5]."
Summary of this case from City of LaGrange v. USAA InsuranceOpinion
42062.
ARGUED JUNE 8, 1966.
DECIDED JUNE 22, 1966. REHEARING DENIED JULY 8, 1966.
Action for damages. Gordon Superior Court. Before Judge Davis.
Harbin M. King, for appellant.
T. L. Shanahan, Warren Akin, for appellee.
1. Where the plaintiff appeared twice before the governing authority of the municipality to present her claim for injuries, and was assured that the city would wait until her medical information was complete and would then settle the claim, the fact that notice in writing was not given until more than six months had elapsed does not under these facts bar the prosecution of the suit.
2. The petition sets out a cause of action based on negligent maintenance of city streets.
ARGUED JUNE 8, 1966 — DECIDED JUNE 22, 1966 — REHEARING DENIED JULY 8, 1966 — CERT. APPLIED FOR.
This petition alleges that the defendant, a municipal corporation whose governing body is a mayor and board of aldermen (Ga. L. 1963, pp. 3120, 3123) and which operates for profit a municipal water system including water mains and drainage sewers under charter authority, routinely connects new buildings with the water system by tapping into the water main running under the center of a city street. On September 29, 1964, the defendant had dug a ditch across one-half of the street, laid a pipe to provide water for a newly constructed building, and filled the ditch with loose dirt with a layer of crushed rock on top which closely resembled the surface of the adjacent pavement. Rainfall during the night filled the hole with water and ooze, unknown to the plaintiff, who drove down the street the following day. The rear wheels of the automobile dropped into the ditch up to the axle, throwing the plaintiff forward and causing certain permanent injuries including displacement of the right kidney.
Plaintiff orally notified the city clerk. The site was investigated by him and thereafter by the mayor. On October 12 plaintiff appeared before the city council, composed of the mayor and board of aldermen, and orally presented her claim. She was told by this governing body that they wished to settle the claim without litigation and would act on it when she obtained a physician's statement and bill for services. The doctor informed her that it would take several months to ascertain the extent of injury. On March 22, 1965, she again appeared before the governing authority and presented these facts, and was instructed that she should wait until it was possible to obtain the statement, and the claim would then be acted upon. On May 24, 1965, at a regular meeting of the city council she submitted a written statement of the circumstances of her injury and settlement demand, a statement by the doctor of her injuries and his bill for services, which she was instructed to mail to the city attorney "and that they would be willing to do anything that said city attorney recommended in effecting a compromise and settlement of her claim." Further conferences resulted in a declination of liability. The petition was filed December 24, 1965, and thereafter dismissed on general demurrer.
1. The maintenance of a water system is a proprietary, private and nongovernmental function of the municipal corporation as to acts in the performance of which an equitable estoppel or estoppel in pais may be applied just as though it were a private corporation. City of Atlanta v. Gate City Gas Light Co., 71 Ga. 106; Mayor c. of Athens v. Georgia R., 72 Ga. 800; City of Jefferson v. Holder, 195 Ga. 346 ( 24 S.E.2d 187); City of Summerville v. Georgia Power Co., 205 Ga. 843 (2) ( 55 S.E.2d 540); City of Atlanta v. Glenn, 17 Ga. App. 619 ( 87 S.E. 910); City of Savannah v. Monroe, 22 Ga. App. 190 ( 95 S.E. 731); Brown v. Western Union Tel. Co., 39 Ga. App. 152 ( 147 S.E. 151); City of East Point v. Upchurch Packing Co., 58 Ga. App. 829 ( 200 S.E. 210). The appellee here contends that Code § 69-308 making written notice to the municipality within six months of the injury a condition precedent to the filing of a suit mandatory is a limitation which cannot be waived and against which no estoppel will lie. In Peek v. City of Albany, 101 Ga. App. 564 ( 114 S.E.2d 451) it was assumed, without expressly deciding the point, that a municipal corporation in the exercise of a proprietary function might be estopped from contending that the notice given was not in writing, but the opinion went on to say that in such case the notice must be given to the proper governing authorities. Here the plaintiff, within the six month period, twice appeared before the city council, the proper forum to hear her complaint and which in fact, according to the allegations of the petition, thoroughly investigated the matter, and relied on the statement of that body that litigation was not desired and the claim would be acted upon at such time as she was able to furnish the proper medical information. Thereafter, and about seven weeks after the time had elapsed, she did furnish the information and did present the claim in writing.
The purpose of the ante litem notice is simply to give the city such information as may be necessary to enable it to investigate the claim and determine whether it prefers to adjust the claim without suit. Kennedy v. Mayor c. of Savannah, 8 Ga. App. 98 (1) ( 68 S.E. 652). Obviously such notice was in the possession of the governing body of the municipal corporation before whom the plaintiff twice appeared, but that alone would be insufficient to waive written notice within the time limited. When, however, that body went further and told the plaintiff, within the period when she could have filed the notice, that they wished to settle the claim without litigation, promising to act upon it when the medical information was furnished, and when again within the six-month period when she might have given the notice she appeared before them a second time with the information that her doctor's statement would not be available for some months and they again definitely stated, according to the averments of the petition, that it would be satisfactory to wait until such information was available and they would then settle the claim, and where a written notice of claim was in fact given less than two months after the statutory time allowance, and was not given before that time because of the plaintiff's reliance on the statements of the city council that they would settle the claim when the information was available, the plaintiff's position was prejudiced by reliance on statements which it was within the authority of the board of aldermen to make to the extent that it would be fraudulent to deny the claim merely on the proposition that the notice was not given in writing before the expiration of six months. The allegations here, if proved, are sufficient to create an equitable estoppel within the meaning of Code § 38-114 "where it would be more unjust and productive of more evil to hear the truth than to forbear the investigation."
2. The petition set out a cause of action based on negligence of the city. If the ditch on being refilled was so loosely packed with dirt that rainfall caused it to become impassable, and this condition could not be seen by a motorist using the street because the top layer of crushed rock closely resembled the adjacent paved surface, the city failed to perform its ministerial duty to keep its streets in reasonably safe condition. Mayor c. of Milledgeville v. Holloway, 32 Ga. App. 734 ( 124 S.E. 802). Indubitably, whether or not the condition, resulting as it did from the fact that rainfall had intervened, should have been anticipated and guarded against is a question which addresses itself to the jury as a matter of fact rather than to this court as a matter of law.
It was error to dismiss the petition on general demurrer.
Judgment reversed. Nichols, P. J., and Hall, J., concur.