Summary
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.
Summary of this case from Holland v. City of CalhounOpinion
38238.
DECIDED APRIL 29, 1960.
Action for damages. Albany City Court. Before Judge Jones. February 3, 1960.
J. Neely Peacock, Jr., for plaintiff in error.
Smith, Gardner, Kelley Wiggins, Asa D. Kelley, Jr., contra.
The individual acts of a city official will not create an estoppel or waiver of Code (Ann.) § 69-308, where it is not shown that such city official had the actual or delegated authority of the governing body to waive such municipal rights.
DECIDED APRIL 29, 1960.
The plaintiff filed a suit for damages against the City of Albany. The petition alleged that the plaintiff was injured on October 30, 1958, when he stepped upon an improperly maintained water meter box which was owned by the city water distributing system. That after the plaintiff was released from the hospital he visited the mayor of the City of Albany about the middle of February, 1959, and told him the facts of his accident. That he requested the mayor to call a meeting of the city commissioners to handle his claim for damages and reimburse him for his injuries.
At this time, the plaintiff stated to the mayor that he contemplated seeking legal advice with regard to his claim, but he wanted to do the honest and honorable thing and give the defendant city a chance to indemnity him; that the mayor told the plaintiff that he did not need the services of a lawyer and that it would be the worst thing that he could do; that a lawyer would only stir things up, and the city would do the right thing for the plaintiff without the necessity of plaintiff securing legal counsel. It is alleged that the mayor stated that he would see the city manager and have a committee appointed from the city commission to meet with the plaintiff for the purpose of settling and disposing of his claim, and upon this assurance from the mayor, the plaintiff did not seek advice of an attorney; that on or about the 17th day of March, 1959, the plaintiff was called by the city manager who requested his presence at city hall for a meeting with reference to his claim; that the plaintiff went to city hall thinking he would meet with a committee promised by the mayor for the purpose of working out a settlement but when the plaintiff arrived at the meeting, only the mayor and city manager were in attendance; that the plaintiff told the city manager and mayor at this meeting that he had come to place the city on notice of his claim and to tell the committee about the nature and extent of his injuries; that the city manager mentioned the fact that the city attorney was not present at this meeting. At this point, the plaintiff stated that if any lawyer was going to be present, he wanted to get a lawyer to represent and advise him as to his rights; that the mayor again assured the plaintiff that it was not necessary for him to secure legal counsel and that it would be a great mistake for him to discuss the matter with an attorney since the city was going to do the right thing.
The petition alleged that the plaintiff heard nothing from the mayor or the city manager except a letter written to the plaintiff by the city manager under date of March 17, 1959, acknowledging their meeting on March 17, to discuss the injuries received by the plaintiff. On May 4, 1959, the plaintiff sought advice of legal counsel and on May 5, 1959, some six months and five days after the accident, a written demand was served upon the city.
The city admits in its brief that the petition sets forth a cause of action with the exception that it does not allege notice as required by Code (Ann.) § 69-308. After allowing several amendments, the trial court, on February 3, 1960, sustained the defendant's general demurrers, and to this order the plaintiff excepts.
Code (Ann.) § 69-308 provides: "No person, firm or corporation having a claim for money damages against any municipal corporation on account of injuries to person or property, shall bring any suit at law or equity against said municipal corporation for the same, without first, and within six months of the happening of the event upon which such claim is predicated, presenting in writing such claim to the governing authority of said municipality for adjustment, stating the time, place and extent of such injury, as nearly as practicable, and the negligence which caused the same, and no such suit shall be entertained by the courts against such municipality until the cause of action therein shall have been first presented to the said governing authority, for adjustment." In Humthlett v. Reeves 212 Ga. 8 ( 90 S.E.2d 14) the court stated: "The generally accepted meaning of the phrase `governing authority' or `governing body' in reference to the operation of city or county governments, is a council or board performing legislative functions."
In the instant case, the Albany City Charter provides: The "Board of City Commissioners shall be the supreme governing body of the City of Albany, exercising all privileges herein conferred upon the corporation, unless otherwise specifically delegated." Ga. L. 1949, pp. 111-121. The charter also provides: "The municipal government shall consist of a Mayor, who shall be also a member of the Board of City Commissioners, . . . a Mayor pro tem, who shall also be a member of the Board of City Commissioners, . . . one commissioner from each of the five wards of the city. . ." Ga. L. 1949, p. 115. The city manager is only concerned with administrative duties, though he can contract on behalf of the city up to $500. Ga. L. 1923, p. 370.
It is clear from the above authority that, before a suit for damages is instituted against the City of Albany, a written notice which substantially complies with Code (Ann.) § 69-308 to the City Commission is necessary. See Langley v. City Council of Augusta, 118 Ga. 590 ( 45 S.E. 486, 98 Am. St. Rep. 133); Aldred v. City of Summerville, 215 Ga. 651 ( 113 S.E.2d 108). The petition affirmatively shows that no written notice was given to the governing authority, but alleges certain acts of the mayor as a basis for a waiver or estoppel against the city. Assuming, but not deciding that the city could be estopped (see City of East Point v. Upchurch Packing Co., 58 Ga. App. 829, 200 S.E. 210) the petition does not allege that the mayor, under proper authority, was acting on behalf of the board of city commissioners, nor that the mayor had the power to waive such notice. It is clear that, in those cases where the doctrine of estoppel has been applied to municipal corporations, the particular act of the officials relied upon for the estoppel or the particular right of the city sought to have been waived must be within that official's authority to control. See 65 A.L.R. 2d 1278, 1291.
Though the charter provides that the mayor is the proper party for service of process upon the city and that the mayor is a member of the city commissioners, there is no provision that the mayor has the authority to settle claims against the city, nor is the power to waive such notice of a claim alleged. Code § 89-903 provides: "Powers of all public officers are defined by law and all persons must take notice thereof. The public may not be estopped by the acts of any officer, done in the exercise of a power not conferred." The city commissioners being the supreme governing body of the City of Albany would be the proper forum for the plaintiff's notice. Only the acts or actions of the board of city commissioners would estop the city. In the absence of an allegation that the mayor, under proper authority, was acting on behalf of the commissioners or that the board of city commissioners had delegated to the mayor the power to waive such notice, the trial court did not err in sustaining the general demurrer.
Judgment affirmed. Gardner, P. J., Townsend and Carlisle, JJ., concur.