Opinion
33790.
DECIDED MARCH 7, 1952. REHEARING DENIED MARCH 27, 1952.
Action for damages; from Lincoln Superior Court — Judge Perryman. July 28, 1951.
Pierce Brothers, for plaintiff.
Eugene Cook, Attorney-General, W. V. Rice and T. W. Williams, Assistant Attorneys-General, L. C. Groves, for defendants.
1. The final amendment to the petition was a material amendment and reopened the whole petition as thus amended to demurrer, and therefore the previous judgment on demurrer did not become the law of the case.
2. 3. Where the petition as last amended, properly construed, showed that a county-line bridge over a watercourse dividing one county from another was rebuilt by the county or the State Highway Department without a contract therefor, and without taking a bond, no liability for injuries occasioned by defects in such a bridge attached against the county or the State Highway Department; and the trial judge did not err in sustaining the demurrers to the petition as finally amended and in dismissing the action.
DECIDED MARCH 7, 1952 — REHEARING DENIED MARCH 27, 1952.
Sarah Sayer sued Lincoln County for damages for personal injuries alleged to have been caused by a defective bridge. The petition alleged substantially as follows: (3) that, on March 11, 1951, the plaintiff was riding in an automobile driven by her husband along the Augusta-Lincolnton highway, which crosses Little River on a bridge, which the defendant had allowed to fall into disrepair, the floor of which had become worn, decayed, and unfit for automobile traffic; (4) that, when the plaintiff's husband drove upon said narrow bridge, the wheels of his automobile caught in the broken and dilapidated floor of the bridge, which caused the automobile to swerve to one side and strike the balustrade of the bridge and caused the plaintiff to be thrown from the automobile to the ground; (5) that the injuries sustained by the plaintiff when thrown from the automobile to the ground were described in this paragraph; (6) that it was the duty of the defendant to maintain said bridge fit for automobile traffic, but it failed to do so and allowed the bridge to become dilapidated and worn.
Lincoln County vouched the State Highway Department into court to defend the suit. The defendant filed a general demurrer to the petition, the first three paragraphs of the demurrer being to the effect that the petition failed to set out a cause of action against the defendant. In paragraph 4 of the demurrer, the defendant demurred generally to the petition on the ground that it showed that the action arose because of an alleged accident on Little River bridge, which was a county-line bridge across Little River between Lincoln County and Columbia County, Georgia; and the defendant demurred generally to the petition because it failed to allege when, how, or by whom the bridge was built, or that the injury complained of was received within seven years from the time said bridge was built or that it was repaired within that time, or that it was built by contract after letting to the lowest bidder, as required by law, or that the county had failed to take from the contractor a bond as required by law.
Before the demurrer was ruled on, the plaintiff filed an amendment to her petition, striking part of paragraph 3 and adding paragraphs substantially as follows: (7) that in 1948 the State Highway Department let a contract for the building of a new county-line bridge across Little River on State Highway Route 47 (not the bridge here in question), and that, as a result of this, the traffic in hauling heavy machinery and materials across the old county-line bridge over Little River was greatly increased, and said bridge, not being able to sustain the weight of the increased traffic, was rebuilt in the year 1950 by Lincoln County through its legally delegated authority, the State Highway Department; (8) that at the letting of such bridge no bond was taken by Lincoln County or its legally delegated authority, the State Highway Department, as was its duty to do; (9) that the plaintiff's injuries were sustained less than seven years from the rebuilding of said bridge. Paragraphs 10 and 11 alleged the defective manner in which the floor of the bridge was rebuilt; and paragraph 12 alleged that the plaintiff had no control over the automobile which was being driven by her husband at the time, nor was she engaged with her husband in a joint enterprise.
The defendant renewed its demurrers to the petition as amended, and also demurred thereto on additional grounds and demurred to the amendment. The first four grounds of the renewed demurrer were substantially the same as those in the first demurrer to the original petition. Paragraphs 5 and 6 of the defendant's demurrer to the plaintiff's amendment and to the petition as amended were as follows: (5) that said amendment, while admitting that the bridge concerned was a county-line bridge, fails to allege when, how, or by whom the bridge was built or rebuilt; fails to allege when or how the notice to build or rebuilt said bridge was made or advertised; fails to allege that there was a contractor to build or rebuild said bridge; and fails to allege that there was a contractor who was the lowest bidder following advertisements in the terms of the law to build or rebuild the bridge; (6) that the plaintiff fails to allege in paragraph 8 of the amendment when, how, or by whom the bridge was built, who the contractor was, whether or not there was proper advertising and notice of said building or rebuilding of the bridge, whether or not a contract therefor was let to the lowest bidder, and who the lowest bidder was. In paragraph 7, the defendant demurred to the plaintiff's amendment on the ground that it attempted to set up a new and different cause of action, the original petition of the plaintiff being a purported suit for damages allegedly arising from a defect in a bridge occasioned by the failure of the defendant to keep the same in repair, whereas the amendment undertakes to set up a new and different cause of action, arising out of a defective county-line bridge which was rebuilt by Lincoln County within seven years of the date of the alleged accident, the defendants having let said rebuilding, presumably to the lowest bidder, and that no bond was taken from the contractor, and that on account of the failure to take said bond, the defendant is liable.
On June 2, 1951, the trial judge overruled the general grounds of both the original and the second demurrers to the petition, sustained special grounds 5 and 6 of the second demurrer and dismissed the petition, unless the plaintiff should amend to meet these two grounds of demurrer by June 16, 1951, and overruled ground 7 of the demurrer. The plaintiff, on June 16, 1951, in response to the ruling on ground 6 of the demurrer, amended paragraph 8 of the petition, by alleging that the bridge in question was first built in 1930 by Ed Pettus under a contract with the State Highway Department after bids were duly advertised as therein stated, said Ed Pettus being the lowest and best bidder; that Lincoln County did not take a bond as required by Code § 95-1210, nor did the State Highway Department do so for it; that said bridge was rebuilt in 1950 by the State Highway Department without advertisement; and that neither Lincoln County nor the State Highway Department took a bond therefor as required by the statute. In response to the ruling on ground 5 of the demurrer, the plaintiff amended by adding paragraphs 13, 14, and 15 to the petition, paragraphs 13 and 14 being to the effect that said bridge was first built by Ed Pettus as contractor under a contract dated August 19, 1930, with the State Highway Department; that notice for bids for the building of said countyline bridge was duly advertised; that Ed Pettus was the lowest and best bidder; and that a bond was taken from said contractor for the payment of labor and materials that went into the construction of said bridge; but that no bond was taken as required by Code § 95-1210. Paragraph 15 alleged that said bridge later became impassable and was rebuilt by the State Highway Department during the year 1950 at a cost of more than $500, without advertising, and that no bond was taken therefor either by the county or the State Highway Department, as required by said Code section.
The defendant then renewed all of its former demurrers to the petition as amended, and demurred further to the petition as amended and (1) moved to strike paragraph 8 of the petition as amended, on the ground that said paragraph showed on its face that the State Highway Department rebuilt the bridge without advertisement and without a contract and that no legal liability exists unless the work is performed under a contract; (2) demurred to and moved to strike paragraphs 13 and 14 of the amendment, on the ground that they showed that it had been more than seven years since the bridge was first built in 1930; and (3) demurred to and moved to strike paragraph 15 of the amendment on the ground that it showed on its face that the bridge was rebuilt by the State Highway Department during 1950 without advertisement or without taking a bond, that said rebuilding of the bridge was performed by State forces, and that there was no legal liability of Lincoln County or of the State Highway Department where the rebuilding or repairing was performed by county or State forces.
Thereafter the trial judge passed an order reciting that, in his opinion, the amendment to the petition, filed June 16, 1951, was a material one and opened the petition as amended to the renewed demurrers, both general and special; the general and special demurrers were sustained, and the petition was dismissed. The plaintiff excepted.
1. It is contended by the plaintiff in error that the ruling of the court on the demurrers, on June 2, 1951, became the law of the case and adjudicated that the petition as then amended set out a cause of action. This suit as originally brought was for damages on account of a defect in a bridge allegedly caused by the failure of the defendant to keep the bridge in repair. It does not appear from the original petition whether the alleged defective bridge was an intracounty bridge or a county-line bridge, nor by whom, how, or when it was built. It appears from the petition as first amended that the bridge in question was a county-line bridge; that it was rebuilt in 1950 by Lincoln County through the State Highway Department; that, at the letting of such bridge, no bond was taken by Lincoln County or the State Highway Department, as was its duty to do; and that the plaintiff's injuries were sustained less than seven years from the rebuilding of said bridge. After the court overruled the defendant's general demurrer and sustained the special demurrers, on June 2, 1951, and dismissed the petition, with leave to amend, the plaintiff amended her petition a second time. This was a material amendment, which opened the petition as amended to demurrer, both general and special. It appeared for the first time, in this amendment, that the bridge in question was first built in 1930 by Ed Pettus, under a contract between him and the State Highway Department after bids were duly advertised for as therein stated, said Pettus being the lowest and best bidder; that Lincoln County did not take a bond as required by Code § 95-1210, nor did the State Highway Department do so for it; that said bridge later became impassable and was rebuilt by the State Highway Department during the year 1950 at a cost of more than $500 without advertising; and that no bond was taken therefor either by the county or the State Highway Department as required by said Code section.
An amendment to a petition which materially changes the nature of the suit or the cause of action, made at any stage of the case, opens the whole petition anew to demurrer at that time. See Tingle v. Maddox, 186 Ga. 757 (2) ( 198 S.E. 722); Green v. Spires, 189 Ga. 719, 721 ( 7 S.E.2d 246); Lamb v. Greeno, 62 Ga. App. 615 ( 9 S.E.2d 126). Likewise, an amendment to a petition which shows that the plaintiff is not entitled to recover renders the petition as amended subject to demurrer at that time.
It clearly appears from this last amendment that the bridge in question was first built by a contractor more than twenty years before the injuries sued for occurred; that no bond was taken by the county or the highway department at that time; that it was rebuilt by the State Highway Department in 1950 without a contract; and that no bond was taken at that time by the county to the highway department. The petition as thus amended fails to show any legal liability on the part of the county to the plaintiff for the injuries sustained on account of the alleged defective county-line bridge and, therefore, was subject to the renewed demurrers.
There is a marked difference in the law fixing liability against a county for injuries received an account of a defective county-line bridge over a watercourse dividing two counties, and the provisions of the law making a county primarily liable for injuries caused by a defective intracounty bridge, whether such bridge is erected by a contractor or by county authorities. The law in this respect will be set out in the next division of this opinion.
2. The law applicable to and controlling in the present case is contained in the case of Wasden v. Jefferson County, 56 Ga. App. 505 ( 193 S.E. 116), and for convenience that decision is here quoted as follows: "1. The provision of the Code, § 95-1001, making counties primarily liable for injuries caused by defective bridges, whether erected by contractors or county authorities, is not applicable to a bridge erected over a watercourse which divides one county from another. Sections 23-1901 to 23-1905, inclusive, are applicable to county-line bridges; and liability for defects in such bridges attaches only under the provisions of § 95-1210, for failure of the county to take a sufficient bond from the contractor. Brooks County v. Carrington, 7 Ga. App. 225 ( 66 S.E. 625); Laurens County v. McLendon, 19 Ga. App. 246 ( 91 S.E. 283); Wells v. Jefferson County, 19 Ga. App. 455 ( 91 S.E. 943); Newberry v. Hall County, 52 Ga. App. 472 ( 183 S.E. 664); Forsyth County v. Gwinnett County, 108 Ga. 510 ( 33 S.E. 893); Willingham v. Elbert County, 113 Ga. 15 ( 38 S.E. 348).
"2. A county is not liable to suit for any cause of action, unless made so by statute. Code, § 23-1502. Before the act of December 29, 1888 (Ga. L. 1888, p. 39), a county was not liable for injuries arising from defective bridges, unless the bridge had been erected under contract and the county had failed to take a bond from the contractor as required by law. Inasmuch as that act only had reference to intracounty bridges, by specifically amending the Code of 1882, § 671 (Code of 1933, § 95-1001), so as to make counties primarily liable for defective bridges as provided therein, and had no reference to county-line bridges, the liability of a county for a defective county-line bridge was not changed thereby, but remained the same as it was before the passage of said act. And the liability of a county for defects in such bridges attaches as pointed out in division 1 of this opinion. Forsyth County v. Gwinnett County, supra; Hackney v. Coweta County, 117 Ga. 327 ( 43 S.E. 725); Paxton v. Berrien County, 117 Ga. 891 ( 45 S.E. 266); Warren County v. Evans, 118 Ga. 200 ( 44 S.E. 986).
"3. Accordingly, where the plaintiff brought suit against Jefferson County for personal injuries alleged to have been sustained by the collapse of a section of a county-line bridge spanning a stream between Jefferson and Glascock Counties, alleging that the portion of said bridge in Jefferson County, where the accident occurred, had been built anew within the last seven years at a cost of more than $500; that no contract for the construction of the bridge was made, and no bond taken as required by law, but it was built by the county by furnishing its own material and by convict labor; that the bridge was defectively constructed, and his injuries were occasioned thereby, the petition failed to make a case of liability against Jefferson County, and the court properly sustained the general demurrer to the petition." In this connection, see Brooks County v. Carrington, 7 Ga. App. 225 (supra); Wells v. Jefferson County, 19 Ga. App. 455 (supra); Newberry v. Hall County, 52 Ga. App. 472 (supra); Forsyth County v. Gwinnett County, 108 Ga. 510 (supra); and Willingham v. Elbert County, 113 Ga. 15 (supra); which are cited in the case above quoted. It will be seen from the above-cited statutes and authorities that the liability of a county for a defective county-line bridge (a bridge spanning a watercourse dividing two counties) was not changed by the act of 1888 (Ga. L. 1888, p. 39), but the law with respect to such bridges remained the same as it was before the passage of said act, and is as stated above.
As far back as 1870, in Scales v. Ordinary, 41 Ga. 225, and in 1875, in Collins v. Hudson, 54 Ga. 25, a full-bench decision, it was ruled that, "when a suit is brought against a county for damages caused by a want of proper repairs to a public bridge, it should appear that the bridge was erected by letting it out to the lowest bidder, and that no bond was taken from the contractor faithfully to perform his contract, and to indemnify for all damages occasioned by a failure so to do, and to keep the bridge in good repair for seven years, and for such further time as may be embraced in the contract — and both of these facts should be alleged in the declaration." In that case there were no allegations in the declaration that the bridge was erected by a contract made with a builder under a letting out to the lowest bidder and that no bond was taken from such contractor to keep it in repair for seven years, and consequently the petition was dismissed on demurrer. Rulings to the same effect were made in County of Gwinnett v. Dunn, 74 Ga. 358, and in Arline v. Laurens County, 77 Ga. 249, 251 ( 2 S.E. 833), where the full-bench decision in Collins v. Hudson, supra, was reaffirmed as the prevailing law in such cases. It was ruled in Warren County v. Evans, 118 Ga. 200, 201 (supra), that, "Prior to the act of December 29, 1888, a county was not liable for injuries arising from defective bridges, unless the bridge had been erected under contract and the county had taken no bond from the contractor as required by law; and even then the county was not liable unless the injury occurred within seven years from the building of the bridge."
3. Therefore, it will be seen that Code §§ 23-1901 to 23-1905 are applicable to county-line bridges, and that liability for defects in such a bridge attaches only under the provisions of Code § 95-1210, that is, for failure of the county to take a sufficient bond from the contractor; and where, as here, the petition as last amended, properly construed, showed that such a bridge was rebuilt by the county or the State Highway Department without a contract, and without taking a bond, no liability for injuries caused by defects in such a bridge attached against the county or the State Highway Department, and the trial judge did not err in sustaining the demurrers to the petition as finally amended and in dismissing the action.
The cases of Laurens County v. McLendon, 19 Ga. App. 246 ( 91 S.E. 283), and Helvingston v. Macon County, 103 Ga. 106 ( 29 S.E. 596), are cited and relied on by the plaintiff in error. The Helvingston case, supra, dealt with an intracounty bridge, rebuilt after the year 1888, as disclosed by the facts of that case. If anything is said in either of those cases contrary to the rulings in the older cases dealing with county-line bridges and the statute law with respect to the same as above cited, then such rulings or statements, if there be such, in the two named cases must yield to the older cases dealing with the question here involved and the statute law with respect to liability for defects in such bridges as are here involved.
Judgment affirmed. Felton and Worrill, JJ., concur.