City of Atlanta v. Barrett, 38395
| Decision Date | 07 September 1960 |
| Docket Number | No. 2,No. 38395,38395,2 |
| Citation | 102 Ga.App. 469,116 S.E.2d 654 |
| Parties | CITY OF ATLANTA v. J. N. BARRETT |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Where a person has a cause of action for personal injuries against a municipal corporation for which, as a condition precedent to its enforcement, he is required to give the statutory notice provided for in Code § 69-308, and where, as a result of the occurrence giving rise to the cause of action, such person becomes mentally and physically incapacitated so as to be incapable of acting for himself in carrying on his business and in prosecuting his claim, and where no guardian is appointed for him, the time limit for giving the statutory notice of his claim is tolled until such time as he regains the capacity to act for himself or until such time as a guardian is appointed and actually does act for him, or until such time as one bona fide acting for him as next friend actually gives the defendant municipality such notice, and where a suit is brought thereafter by such next friend during the continuing disability of the plaintiff showing a notice given to the defendant more than 30 days prior to the filing thereof it is not subject to general demurrer on the ground that such notice was not timely given.
Newell Edenfield, J. C. Savage, Robert S. Wiggins, Atlanta, for plaintiff in error.
Smith, Kilpatrick, Cody, Rogers & McClatchey, Miles J. Alexander, Atlanta, for defendant in error.
Julian H. Barrett, for whom it was alleged no guardian had been appointed at the time the suit was brought and who was alleged to be mentally and physically incapable of conducting his own affairs, by and through his next friend, H. E. McCarley, filed suit in the Superior Court of Fulton County for damages against the City of Atlanta. The petition alleged that the plaintiff was injured on September 20, 1957 when he ran his automobile into a ditch, negligently maintained by the defendant across Piedmont Road. No issue is made in this court as to the sufficiency of the pleadings to state a cause of action for actionable negligence on the part of the defendant, and for this reason the allegations as to this element of the case need not be set out in detail here. The petition alleged that when his automobile struck the ditch and was thrown out of control thereby, it hit a concrete railroad bridge; that the plaintiff received multiple fractures of his body and numerous head injuries which resulted in immediate and permanent mental and physical disability which will render it impossible for him to perform gainful employment for the remainder of his life; that the notice required to be given the defendant municipality under Code § 69-308 of the injuries and damages sustained has been given to the defendant by registered letter which was mailed March 14, 1959. The defendant filed general and special demurrers to the petition. The court entered an order overruling the general grounds of the demurrer and sustaining certain of the special demurrers. The exception here is to so much of the order as overruled the general demurrers.
In the argument of counsel before this court, the sole question presented for decision is whether, under the facts alleged in the petition, the running of time under the provisions of Code § 69-308 requiring that notice of injuries or damage be given to a municipality within six months of the date of such injuries or damage sustained is tolled under the provisions of Code § 3-801 so that the plaintiff is not barred by his failure to give the statutory notice to the municipality within six months from the date his right of action on account of the injuries and damages sustained accrued.
Code § 69-308 reads as follows: '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 said governing authority, for adjustment: * * * .' It is well established in Georgia that failure to...
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Besette v. Enderlin School Dist. No. 22
...fixed for giving a city a notice of a claim against it." 468 S.W.2d at 590. The Georgia Court of Appeals in City of Atlanta v. Barrett, 102 Ga.App. 469, 116 S.E.2d 654 (1960), held that a statute (similar to Subsection 1) which required a written claim to be presented to a municipality with......
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Schaefer v. Mayor and Council of City of Athens
...and plaintiff appeals. Held: 1. The requirement of ante litem notice in Code § 69-308 is a statute of limitation. City of Atlanta v. Barrett, 102 Ga.App. 469, 116 S.E.2d 654. Giving of the notice in the manner and within the time required by the statute is a condition precedent to the maint......
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Ethridge v. Price
...friend actually files suit on his behalf. Cline v. Lever Bros. Co., 124 Ga.App. 22(4a), 183 S.E.2d 63 (1971); City of Atlanta v. Barrett, 102 Ga.App. 469, 116 S.E.2d 654 (1960). Thus, the two-year statute of limitation governing personal injury suits commenced in the case at bar on June 26,......
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...Mut. Cas. Co. v. Woodard , 300 Ga. 848, 852 (2), 797 S.E.2d 814 (2017) (citation and punctuation omitted).In City of Atlanta v. Barrett , 102 Ga. App. 469, 116 S.E.2d 654 (1960), the Court of Appeals considered whether the six-month ante litem notice requirement for claims for damages again......