City of Barnesville v. Powell, 46082

• Decision Date: 24 June 1971
• Docket Number: No. 46082,No. 3,46082,3
• Citation: 124 Ga.App. 132,183 S.E.2d 55
• Parties: CITY OF BARNESVILLE v. Ralph POWELL
• Court: Georgia Court of Appeals

Page 55

183 S.E.2d 55

124 Ga.App. 132

CITY OF BARNESVILLE v. Ralph POWELL.

No. 46082.

Court of Appeals of Georgia, Division No. 3.

June 24, 1971.

Neely, Freeman & Hawkins, Thomas H. Harper, Jr., Atlanta, for appellant.

Ham, Mills & Freeman, W. Franklin Freeman, Jr., Forsyth, for appellee.

Syllabus Opinion by the Court

WHITMAN, Judge.

1. The requirement of ante litem notice in Code Ann. § 69-308 (stating that before suit may be instituted against any municipal corporation for money damages for injury to person or property, it must be notified in writing within 6 months of the event upon which the claim is predicated for opportunity to adjust same) is a statute of limitation. City of Atlanta v. Barrett, 102 Ga.App. 469, 116 S.E.2d 654: Schaefer v. Mayor & Council of City of Athens, 120 Ga.App. 301(1), 170 S.E.2d 339. And where the person to whom the claim belongs is a person under disability as set forth in Code §§ 3-801 and 3-1005, the limitation period does not begin to run until such time as the disability shall have been removed. City of Atlanta v. Barrett, 102 Ga.App. 469, 116 S.E.2d 654, supra. Cf. Mayor & Council of City of Athens v. Schaeffer, 122 Ga.App. 729, 178 S.E.2d 764. In this case Cindy Dawn Powell was about four years old when the alleged negligence and injury occurred, thus being under the disability of infancy her claim was not barred because notice was not given until about two years after the occurrence.

2. '(T)he appointment of a guardian does not operate to start the statute of limitation running against the minor or the guardian in cases where the title to the cause of action is in the minor. Wingfield v. Virgin, 51 Ga. 139(1); Monroe v. Simmons, 86 Ga. 344, 12 S.E. 643 and cases cited; Grimsby v. Hudnell, 76 Ga. 378 (2 Am.St.Rep. 46); Nelson v. Estill, 190 Ga. 235, 243, 9 S.E.2d 73.' Whalen v. Certain-Teed Products Corp., 108 Ga.App. 686, 687, 134 S.E.2d 528, 530. Thus the appellant's argument that it was error to enter judgment on the verdict because there was a failure to plead and prove the date of the guardian's appointment and notice to the municipality within 6 months thereof is without merit.

3. The defendant submitted a request to charge to the effect that the plaintiff would have the same burden of proof with respect to injury and damage as with liability; that any alleged injury or complaint must be shown to have occurred as a proximate result of the incident complained of; and that, further, no recovery would be authorized for any injury or complaint, the cause of which was left to guess or speculation after considering the evidence.

The request was proper but the legal principles requested therein were adequately covered by the charge as given. There was no error in not charging the request's exact language. Seagraves v. ABCO Mfg. Co., 121 Ga.App. 224, 226, 173 S.E.2d 416.

4. The defendant also requested that the jury be charged the language of Code § 38-119 regarding the presumption arising from failure to produce evidence. It is argued in this connection that the request should have been given inasmuch as the plaintiff did not call all the physicians whom the plaintiff had seen in connection with her problem. The plaintiff presented the testimony of one urologist, one psychiatrist and one general practitioner with opportunity for cross examination. The defendant-appellant's brief relates its request to charge particularly to the plaintiff's pediatrician and to a urologist who were not called by plaintiff to testify in the case. From a review of the...