City of Atlanta v. Fuller, 43865
| Decision Date | 08 October 1968 |
| Docket Number | No. 43865,No. 3,43865,3 |
| Citation | 164 S.E.2d 364,118 Ga.App. 563 |
| Parties | CITY OF ATLANTA v. Myrtie FULLER |
| Court | Georgia Court of Appeals |
Henry L. Bowden, Martin McFarland, Atlanta, for appellant.
Rich, Bass, Kidd & Broome, C. Richard Avery, R. Hopkins Kidd, Decatur, for appellee.
Syllabus Opinion by the Court
Myrtle Fuller sued the City of Atlanta and Strickland, driver of a truck of the city water department, for injuries allegedly sustained when the truck driven by Strickland collided with an automobile in which she was a passenger. Thereafter the plaintiff by amendment set up the ante litem notice to the municipality which reads as follows: Defendant's motion for judgment on the pleadings (all grounds of which are directed to the sufficiency of notice) was overruled. The questions raised by the appeal are:
(a) Where the original petition failed to set out that notice as required by Code Ann. § 69-308 has been given the municipality, may this fact be added by amendment? Code Ann. § 81-A-115 provides in part: '(a) Except as otherwise provided, a party may amend his pleading as a matter of course at any time * * * (c) Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.' Whatever may have been the former rule (see Hooper v. City of Atlanta, 26 Ga.App. 221(3), 105 S.E. 723), there is now no procedural inhibition against allowing the ante litem notice to be added by amendment.
(b) Was the notice sufficient? Under Code Ann. § 69-308 it must state 'the time, place, and extent of such injury, as nearly as practicable, and the negligence which caused the same.' It is contended that the negligence of the city is not substantially set forth and that the notice therefore fails of its purpose. In its last construction of this part of the statute the Supreme Court, reversing the Court of Appeals in Aldred v. City of Summerville, 215 Ga. 651, 655, 113 S.E.2d 108 held that this court erred in failing to follow a lengthy line of cases including Olmstead v. Mayor etc. of Savannah, 57 Ga.App. 815, 196 S.E. 923, 'wherein it was held that it is only necessary that the instrumentality causing the injury be so set out that the city is put on such notice that it can investigate the claim, and determine whether it prefers to adjust the claim without suit or to contest its validity in the courts.' In Aldred the notice stated only that the plaintiff was injured while riding in a car 'being driven over a manhole located in approximately the middle of the street.' The notice here states that the plaintiff was injured 'as the result of a collision between an automobile operated by Mrs. Ann Dowdy and a Water Works vehicle.' In both cases the time and place of injury is alleged. The latter contained sufficient data to enable the municipality to examine into the facts of the case, and was a substantial compliance. City of Sandersville v. Stanley, 10 Ga.App. 360(2) 73 S.E. 535; Mayor and Council of Waynesboro v. Hargrove, 111 Ga.App. 26, 140 S.E.2d 286.
(c) Was the notice sent to a proper party? In Allen v. City of Macon, 118 Ga.App. 88, 162 S.E.2d 783, we held that notice to a claims manager of the defendant's insurer was insufficient. Notice directed to and served on the mayor was held insufficient in City of Tallapoosa v. Brock, 138 Ga. 622, 75 S.E. 644. In City of Calhoun v. Holland, 222 Ga. 817, 819, 152 S.E.2d 752, it was stated that written notice must be given a municipal corporation, and the governing authority thereof has no right to waive such notice. Here the notice was given to the corporation, the City of Atlanta, and was mailed to it at the address of its legal department, which constitutes a substantial compliance with the law.
The trial court properly denied the motion for judgment on the pleadings.
Judgment affirmed.
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