City of Gainesville v. Moss, 40293

• Decision Date: 14 November 1963
• Docket Number: 2,Nos. 1,3,No. 40293,40293,s. 1
• Citation: City of Gainesville v. Moss, 134 S.E.2d 547, 108 Ga.App. 713 (Ga. App. 1963)
• Parties: CITY OF GAINESVILLE v. Odis R. MOSS
• Court: Georgia Court of Appeals

Page 547

134 S.E.2d 547

108 Ga.App. 713

CITY OF GAINESVILLE v. Odis R. MOSS.

No. 40293.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Nov. 14, 1963.

Rehearing Denied Dec. 3, 1963.

Syllabus by the Court

1. While the ante litem notice required to be given by Code Ann. § 69-308 is a prerequisite to the maintenance of an action against a city, if it appears from the notice that a part of the injury from which the claim arises occurred within the six-month period immediately preceding the notice, a general demurrer will not lie for noncompliance with this statute.

2. Notice given within six months from the expiration of the four-year period during which a nuisance continuously caused damages to plaintiff's property is within the time prescribed and complies with Code Ann. § 69-308. Vickers v. City of Fitzgerald, 216 Ga. 476, 483(5), 117 S.E.2d 316.

3. The special demurrers attacking the measure of damages were without merit.

Plaintiff owned and operated the Snack Shack Drive-In restaurant located by the banks of Flat Creek in Gainesville. A city sewer pumping station is located on the creek about 500 feet below the restaurant. The pumping station has allegedly been inadequate since 1959 and, as a result of the overload, raw sewage was intentionally pumped or overflowed into Flat Creek. The raw sewage lay in the stream bed and on the banks of Flat Creek, which had little natural flow. This caused an extremely obnoxious odor, especially in the summer.

Plaintiff alleges that under these conditions his driven-in business suffered losses. He communicated these facts to the city, the county health department and the state health department on a number of occasions but no relief was forthcoming. Plaintiff seeks damages for the loss of actual profits, loss of reputation or good will and deprivation of unimpaired use of the property, most of which are alleged to have accrued more than six months before the giving of notice of his claim to the city on October 31, 1961.

Although plaintiff amended his petition in certain respects--striking from paragraph 13 the words 'through most of' and adding in lieu 'continuing through 1961,' and adding to paragraph 18 the allegation that he had lost from his '1961 net income, $1,349.60,' and striking paragraph 25--no change was made in the amount sought to be recovered, which is identical with the amount claimed in the notice. Suit was filed on December 1, 1961. The defendant's general and special demurrers were overruled and it excepts.

Kenyon, Kenyon & Gunter, Wm. B. Gunter, Gainesville, for plaintiff in error.

Stewart, Sartain & Carey, Jack M. Carey, Brannon, Brannon & Schurder, E. C. Brannon, Gainesville, for defendant in error.

Oliver & Maner, L. Clifford Adams, Atlanta, amicus curiae.

EBERHARDT, Judge.

1. Code Ann. § 69-308 provides, inter alia, that no suit shall be brought against a municipality 'without first, and within six months of the happening of the event upon which such claim is predicated' (emphasis added) presenting a written notice to the city containing certain specified information. Plaintiff alleges a continuing nuisance and seeks to recover damages for matters some of which occurred more than six months prior to the date of the notice, October 30, 1961. Failure to comply with the provisions of this section bars any right of action. Saunders v. City of Fitzgerald, 113 Ga. 619, 38 S.E. 978; Newton v. City of Moultrie, 37 Ga.App. 631, 141 S.E. 322; Pettaway v. City of Albany, 105 Ga.App. 739, 125 S.E.2d 568. The defendant city contends that, since a continuing nuisance gives rise to a new cause of action daily, Scott v. Dudley, 214 Ga. 565(2), 105 S.E.2d 752, any damages accruing more than six months prior to the giving of the notice cannot be recovered because the conditions of Code Ann. § 69-308, which is a statute of limitation, City of Atlanta v. Barrett, 102 Ga.App. 469, 471, 116 S.E.2d 654, have not been met.

In is contended by the city, and we agree, that the purpose and intent of the legislature in the adoption of the Act amending Code Ann. § 69-308 (Ga.Laws 1953, Nov. Sess., p. 338) was fourfold; to afford the officials of an offending city opportunity to investigate the complaint at a time when the evidence relative thereto is calculated to be more readily available, to afford them opportunity, if the complaint relates to a continuing nuisance, to take proper steps to abate it before the effects thereof become great or far reaching, to bar a claimant's right of recovery for any and all claims arising by reason of matters that may have transpired or existed giving rise to a cause of action on dates more than six months prior to the giving of the required ante litem notice, and to afford the city an opportunity to negotiate a settlement of such claims as it may determine to be meritorious before litigation is commenced, thus protecting the interests of the general public by reducing the exposure of the funds in the city treasury to depletion from growing claims for damages.

This position of the city finds support in City of Atlanta v. Scott, 66 Ga.App. 257, 18 S.E.2d 76 where the court dealt with a special Act applicable to the City of Atlanta requiring an ante litem notice of 90 days.

It is the contention of the city here that since it appears from plaintiff's petition that the alleged nuisance had been in existence continuously from the beginning of the year 1959, if the petition be construed against him we must conclude that whatever diminution in the value of his property attributable thereto had already occurred more than six months prior to the date of the ante litem notice and is not recoverable. A copy of the notice is attached to the petition and included therein by reference. While it is true that in it plaintiff asserts that he had registered complaints with the city officials 'for the past four years,' and that the basis for the claimed diminution in the value of the use of his property is an alleged loss of income from his business which he says was brought on by the pollution of Flat Creek adjoining it--substantially all of which occurred more than six months prior to the notice--yet he asserts further that 'This situation has grown steadily worse and has continued from day to day up to, and including the present time, and for the past two years has been so bad that customers could not stay long enough to eat food prepared there.' (Emphasis supplied). We think that this brings a part, at least, of his claim for damages within the six-month period preceding the giving of the notice, and for this reason the petition as amended can not be held subject to the general demurrer.

2. But if it be conceded that the petition shows that the damage claimed did occur more than six months prior to the giving of the notice we are still faced with the case of Vickers v. City of Fitzgerald, 216 Ga. 476, 483(5), 117 S.E.2d 316 which appears to...