Arnold v. Walton

• Decision Date: 15 June 1949
• Docket Number: 16683.
• Citation: 54 S.E.2d 424,205 Ga. 606
• Parties: ARNOLD v. WALTON et al.
• Court: Georgia Supreme Court

54 S.E.2d 424

205 Ga. 606

ARNOLD v. WALTON et al.

No. 16683.

Supreme Court of Georgia

June 15, 1949

Rehearing Denied July 14, 1949.

Syllabus by the Court.

1. A county is not liable to suit for any cause of action unless made so by statute.

2. In the absence of a statutory provision to the contrary, a joint action against a tort-feasor and the tort-feasor's insurance carrier, for the purpose of 'fixing the liability' of the insurance carrier, is not maintainable.

Mrs Sarah Ellen Arnold filed her suit and alleged: 'H. E Walton, C. C. Chappell, Marvin McKinney, Sam Bundrick, L. E. Williams, J. H. Dorough, and C. L. McMillan constitute and are the Crisp County Power Commission and as such are made defendants in this suit.' The petition sought to recover damages for the death of the son of the plaintiff, it being alleged that he was negligently killed because of being exposed to a high-voltage transmission line operated by 'The Crisp County Power Commission.' A demurrer on numerous grounds was interposed to the petition. The plaintiff then filed three amendments. The first amendment alleged that the operation of the hydro-electric plant and transmission lines was a commercial business or enterprise. The suit was therein declared on the equity side of the court, and it was prayed that the judgment 'be satisfied as the court might direct,' and judgment was sought against the members of the Commission individually and as constituting the commission. The second amendment alleged that Glens Falls Indemnity Company had entered into a public liability insurance contract with the Commission, in which the insurance company had agreed with the Commission that it would not claim exemption from liability because of any statute or ordinance or legal restrictions that would exempt the Commission from liability; that the plaintiff's son as a member of the public was entitled to the protection of this provision of the insurance contract. The third amendment alleged that the insurance company by defending the suit had thereby adopted the litigation as its own and was bound by all judgments and orders in the same manner as if it had been a party-defendant. It was then prayed that the insurance company be made a party-defendant. These amendments were allowed subject to demurrer. The defendants then renewed the original demurrer to the petition as amended, demurred to the amendments, and added other grounds of demurrer to the petition as amended.

The general demurrer to the petition as amended was sustained and the petition dismissed. The exception is to this judgment.

Edwin A. Rogers, Ashburn, Leonard Farkas and Walter H. Burt, Albany, for plaintiff in error.

Jones, Jones & Sparks, Macon, for defendants in error.

WYATT Justice.

1. Many procedural questions are raised by the demurrer, such as, that a common-law suit for damages can not be converted by amendment into a suit in equity; that new and distinct defendants were being added by amendment. We pass over these questions and go directly to the main legal question involved. Was this in effect a suit against Crisp County?--and, if so, can it be maintained under the facts in this case?

The hydro-electric plant in question came into existence by virtue of a constitutional amendment, Ga.L.1925, p. 72, Const.1877, art. 7, § 7, par. 1. It is there provided that 'the County of Crisp' may incur a bonded indebtedness not to exceed the sum of one million two hundred and fifty thousand dollars, the bonds to be known as Hydro-Electric Power Bonds, to be signed by the chairman and clerk of the Board of Commissioners of Roads and Revenues. The right of eminent domain is conferred upon Crisp County for the purpose of acquiring sites, and for other enumerated purposes. 'Said County of Crisp' is authorized to engage in the business to be operated. The bonds are to be retired from the net proceeds of the operation of the business, if sufficient to do so, but if not, 'the taxing authorities of said County of Crisp' are required to levy a tax for the payment of the bonds. 'A Power Commission' is provided for, to be composed of seven members 'to consist of the members of the Board of Commissioner [sic] of Roads and Revenues of said county as constituted from time to time and four other citizens of Crisp County, who shall be elected by the Grand Jury of said county.' The Power Commission is then authorized to construct and operate the hydro-electric plant.

We think it is clearly apparent from what has been said above that the hydro-electric plant in question was a Crisp County undertaking. The property is owned by the county; the duty of retiring the bonds is that of Crisp County, with the duty imposed, if necessary, to levy a general property tax for that purpose. The Power Commission is the Board of Commissioners of Roads and Revenues, with four other people selected by the Grand Jury. This commission certainly does not own the property; and the duties of the commission are wholly ministerial. This being true, the suit is in effect one against Crisp County.

The next question presented is, can this suit be maintained against Crisp County? The constitutional amendment of 1925, supra, makes no provision for a suit against the county of the nature here sought to be maintained. No provision for suits of any kind appears in the law creating the hydro-electric plant.

The Code, § 23-1501, provides: 'Every county is a body corporate, with power to sue or be sued in any court.' The Code, § 23-1502, provides: 'A county is not liable to suit for any cause of action unless made so by statute.'

This court, in Scales v. Ordinary of Chattahoochee County, 41 Ga. 225, said: 'Counties, as corporations, stand upon an entirely different footing. They are * * * mere subdivisions of the State. The State is never suable except by express enactment, and this is also true of subdivisions of the State. * * * We are the more clear in this view of the law, from the fact that the Code provides two cases in which counties may be sued for damages caused by neglect to keep bridges in repair. * * * It seems to us that the declaration of the Code, that the county shall be liable in these two cases, is a strong legislative intimation that it was not liable in other cases.' There is a long line of decisions by this court following the reasoning announced in the case cited, including Tounsel v. State Highway Department of Georgia, 180 Ga. 112, 178 S.E. 285, and Ware County v. Cason, 189 Ga. 78, 5 S.E.2d 339, where most of the decisions on this question are collected and cited.

Since the legislative branch of the State, when enacting the law creating the Crisp County Hydro-electric plant, did not see fit to provide by statute for suits against the county in case of negligence, we are forced to hold that a suit for damages of the kind here involved can not be maintained against Crisp County.

2. Notwithstanding the rule that a suit against a county can not be maintained unless there is legislative authority for so doing, it is contended that this suit can be maintained, and the insurance company made a party defendant, for the reason that the Power Commission secured a public-liability insurance policy in which the insurance company agreed not to plead as a defense the immunity thus granted to counties by law.

By amendment, the petition alleges that the insurance company is furnishing counsel and is defending the suit, and, in view of the provisions of the contract of insurance, is estopped from pleading that the county is immune from suit. The insurance company, by amendment, is sought to be made a party defendant.

The contract of insurance, which is made a part of the petition provides in part that the insurance company agrees 'to pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages, including damages for care and loss of services, because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person or persons, caused by accident and arising out of the hazards hereinafter defined.' The contract further provides: 'No action shall lie against the company unless, as a condition precedent thereto, the insured...