Opinion
44542.
ARGUED MAY 29, 1969.
DECIDED SEPTEMBER 5, 1969.
Action for damages. Fulton Superior Court. Before Judge Williams.
Henry L. Bowden, Robert S. Wiggins, William R. Bassett, for appellant.
Arnall, Golden Gregory, Cleburne E. Gregory, Jr., William R. Harp, for appellee.
1. A substantial compliance with Code Ann. § 69-308 (requiring ante litem notice to municipalities) is all that is required.
2. An attorney at law representing a municipality in the trial process has no different status from that of any other attorney similarly engaged.
3. The court declines to overrule the case of City of Atlanta v. Fuller, 118 Ga. App. 563 ( 164 S.E.2d 364).
ARGUED MAY 29, 1969 — DECIDED SEPTEMBER 5, 1969.
This is an appeal from the denial of appellant's motion for judgment on the pleadings and from the granting of appellee's motion for partial summary judgment. The appellant's motion was based on the contention that the pleadings show, as a matter of law, that the appellee failed to comply with the ante litem notice requirements of Code Ann. § 69-308. The appellee's motion contended that the complaint, interrogatories and answers, and supporting affidavits show that the appellee had properly complied with the ante litem requirements, or in the alternative, that the city was estopped from contesting the validity of the notice. The complaint alleges injuries and damages sustained by the plaintiff due to the negligence of the city at the Atlanta Airport. The City of Atlanta operates the airport as a part of its city government. The airport is under the administrative supervision of the department of aviation headed by the airport manager. Neither the sufficiency of the complaint nor that of the substance of the ante litem notice is questioned. The issue is whether the address of the letter transmitting the notice is adequate. On August 19, 1966, the plaintiff, through her attorneys, sent a letter to the City of Atlanta notifying it of her fall and injuries. The letter was addressed: "City of Atlanta, City Hall, 68 Mitchell Street, S.W., Atlanta, Georgia 30303. Attention: Airport Authority." The letter was received by the airport manager who acknowledged it and forwarded it to the city attorney. On November 21, 1966, an associate city attorney dispatched a letter to plaintiff's counsel stating that "After investigation by this office of the above claim of August 18, 1966, addressed to City of Atlanta, it is our opinion that the City of Atlanta is not liable for the damages alleged to have been sustained." On February 14, 1967, the complaint was filed. It alleged compliance with Code Ann. § 69-308 and attached a copy of the ante litem notice. The issues are whether the ante litem notice was properly addressed, or if not, whether the city was estopped by its actions to deny the correctness of the address.
1. The Supreme Court has said that Code Ann. § 69-308 requiring the ante litem notice "does not contemplate that the notice shall be drawn with all the technical niceties necessary in framing a declaration. The purpose of the law was simply to give to the municipality notice that the citizen or property owner has a grievance against it. It is necessary only that the city shall be put on notice of the general character of the complaint, and, in a general way, of the time, place, and extent of the injury. The Act recognizes, by the use of the words `as near as practicable,' that absolute exactness need not be had. A substantial compliance with the Act is all that is required." Langley v. City of Augusta, 118 Ga. 590, 600 ( 45 S.E. 486, 98 ASR 133); Aldred v. City of Summerville, 215 Ga. 651, 653 ( 113 S.E.2d 108); City of Acworth v. McLain, 99 Ga. App. 407 ( 108 S.E.2d 821); City of Fairburn v. Clanton, 102 Ga. App. 556 ( 117 S.E.2d 197).
The appellant relies mainly on two cases as supporting its view that the city was not properly notified, or was not estopped from contesting the validity of the notice by the actions of its officials. These cases are City of Calhoun v. Holland, 222 Ga. App. 817 ( 152 S.E.2d 752) and Peek v. City of Albany, 101 Ga. App. 564 ( 114 S.E.2d 451). However, neither is controlling here. In City of Calhoun, supra (not a full-bench decision) the holding was two-fold: (1) the notice must be written and not oral; and (2) oral representations by public officers of a municipality are insufficient (a) to waive a required written notice or (b) to estop the municipality unless the power to do so is expressly conferred on the public officers by law. Holland thus recognized that municipalities could be estopped by those expressly given that power. Similarly, Peek held that the individual acts of a city official will not create an estoppel or waiver where it is not shown that the official had the authority to do them.
2. Compliance with Code Ann. § 69-308 is a condition precedent to a suit against a municipality to recover for injuries to the person or property. This compliance must be alleged in the complaint or else it cannot state a cause of action. Saunders v. City of Fitzgerald, 113 Ga. 619 ( 38 S.E. 978); Thompson v. City of Atlanta, 219 Ga. 190 ( 132 S.E.2d 188). The giving of the notice is therefore a part of the trial process. Aside from prose appearances, only duly qualified attorneys at law may represent clients in legal proceedings. An attorney at law, even if he be also a city attorney, acting for a client in a legal proceeding is not an "officer of the city" of the type referred to in City of Calhoun and Peek, supra. He is then an officer of the court, and all of the presumptions of that office attach to him. One of these presumptions is that where an attorney's authority is not inhibited by express restrictions the attorney's management and direction of his client's case is so broad, so far as the court and opposing parties are concerned, as to be plenary in nature. Dean v. Jackson, 219 Ga. 552 ( 134 S.E.2d 601). Acts of an attorney on behalf of a party cannot be questioned unless wholly unauthorized and then only if the aggrieved party is not guilty of unreasonable delay in acting to correct the improper acts after notice or knowledge of them. Jackson v. Jackson, 199 Ga. 716 ( 35 S.E.2d 258); McCoy v. McSorley, 119 Ga. App. 603 (2) ( 168 S.E.2d 202). In this case neither the pleadings nor the evidence reveals the slightest suggestion of restrictions on counsel for the city. From this the presumption arises that the city attorney had authority to act as he did. He therefore had authority to bind his client by the solemn acknowledgment to plaintiff after receipt of her letter that, after investigation, the conclusion had been reached that the city was not liable. This amounted to an acknowledgment that Code Ann. § 69-308 had been complied with and the ante litem notice was sufficient. This cleared the way for the filing of the complaint. The city is estopped to deny the validity of the notice.
3. We are asked to overrule City of Atlanta v. Fuller, 118 Ga. App. 563, supra. That case held that the requirement of Code Ann. § 69-308 that the ante litem notice be in writing addressed to the governing authority of the municipality is substantially complied with when the written notice is addressed to the municipality. The Supreme Court denied certiorari in that case ( 118 Ga. App. 866) and we decline to overrule it now.
The judgment denying appellant's motion for judgment on the pleadings and granting partial summary judgment for appellee is
Affirmed. Eberhardt and Deen, JJ., concur.