City of Atlanta v. Gilmere

• Decision Date: 04 April 1984
• Docket Number: Nos. 40603,40598,s. 40603
• Citation: 314 S.E.2d 204,252 Ga. 406
• Parties: CITY OF ATLANTA v. GILMERE et al. GILMERE et al. v. CITY OF ATLANTA.
• Court: Georgia Supreme Court

Page 204

314 S.E.2d 204

252 Ga. 406

CITY OF ATLANTA v. GILMERE et al.

GILMERE et al. v. CITY OF ATLANTA.

Nos. 40603, 40598.

Supreme Court of Georgia.

April 4, 1984.

Marva Jones Brooks, Mary Carole Cooney, Atlanta, for City of Atlanta.

J.M. Raffauf, Decatur, Carroll Charles Craig, Locust Grove, for Emma F. Gilmere et al.

WELTNER, Justice.

Gilmere obtained a judgment against Craig arising out of circumstances wherein Craig, as a police officer of the City of Atlanta, was acting in the scope of his governmental employment while responding to an emergency. Seeking to collect the judgment, she filed garnishment proceedings against the City of Atlanta. The City answered the summons of garnishment, setting out Craig's earnings, alleging a certain sum to be exempt from garnishment, and paying the remainder into court. Gilmere traversed the answer of the City, and filed a motion for summary judgment, as did the City.

The trial court granted Gilmere's motion for summary judgment and entered judgment against the City of Atlanta for the entire amount of the judgment which Gilmere previously had obtained against Craig.

The Court of Appeals, 168 Ga.App. 773, 310 S.E.2d 736, affirmed the holding to the City's liability. We granted the City's petition for writ of certiorari, positing the following question: "Whether OCGA § 18-4-21 (Code Ann. § 43-306) waives municipal immunity from lawsuit when the judgment serving as the basis for issuance of the summons of garnishment arises out of liability incurred in the scope of the official's or employee's governmental employment while responding to an emergency."

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The issue here is, of course, whether OCGA § 18-4-21 (Code Ann. § 46-306) serves to eliminate pro tanto the immunity of municipal governments from liability for the torts of its agents. That section provides in part as follows:

"(a) Money due officials or employees of a municipal corporation or county of this state or of the state government, or any department or institution thereof, as salary for services performed for or on behalf of the municipal corporation or county of this state, or the state, or any department or institution thereof, shall be subject to garnishment, except in no event may the officials' or employees' salary for services performed for or on behalf of any municipal corporation or county of this state, or the state, or any department or institution thereof, be garnisheed where the judgment serving as a basis for the issuance of the summons of garnishment arises out of the liability incurred in the scope of the officials' or employees' governmental employment while responding to an emergency. In such cases, the summons shall be directed to such political entity and served upon the person authorized by law to draw the warrant on the treasury of the government or to issue a check for such salary due, or upon the chief administrative officer of the political subdivision, department, agency, or instrumentality; and such entity is required to answer the summons in accordance with the mandate thereof and as provided by this chapter." (Emphasis supplied.)

The history of this Code section militates against the relief granted by the trial court.

In 1976, the General Assembly enacted a broad revision of the laws pertaining to garnishment, then codified as Ga.Code Ann. Ch. 46-1; Ga.L.1976, pp. 1608, et seq. Former § 46-306 of the new chapter (Ga.Laws 1976, pp. 1613, 1615) provided, in part, as follows:

"Salaries due officials or employees of the State government and of its political subdivisions, departments, agencies and instrumentalities shall be subject to garnishment. In such cases the summons shall be directed to such political entity and served upon the person authorized by law to draw the warrant on the...