Horton v. City of Macon

• Decision Date: 16 December 1977
• Docket Number: No. 3,No. 54626,54626,3
• Citation: 241 S.E.2d 311,144 Ga.App. 380
• Parties: Eugene HORTON, Jr. v. CITY OF MACON
• Court: Georgia Court of Appeals

Page 311

241 S.E.2d 311

144 Ga.App. 380

Eugene HORTON, Jr. v. CITY OF MACON.

No. 54626.

Court of Appeals of Georgia, Division No. 3.

Dec. 16, 1977.

Westmoreland, Patterson & Moseley, Stewart R. Brown, Macon, for appellant.

McKenna, House, Lancaster & Green, Doye E. Green, Macon, for appellee.

WEBB, Judge.

Rev. Eugene Horton, Jr. brought suit against the City of Macon to recover damages allegedly caused by a nuisance maintained by the City. Upon the trial of the case, the jury awarded Horton $7,000 damages. The City moved for judgment notwithstanding the verdict and for a new trial; and the trial judge granted both motions. Horton appeals the grant of judgment notwithstanding the verdict, and in the alternative, the grant of a new trial.

The evidence shows that in the summer of 1975, Horton was injured when he backed into a sewer cover which was part of the sewer system maintained by the City. Horton had been cutting grass in his neighbor's yard when a swarm of bees flew toward him. He backed away from the bees, and as he did so, he fell partially into the sewer and sustained multiple injuries.

Horton alleges that he fell into the sewer due to the defective condition of the sewer cover. He further maintains that the cover had been broken for at least one month prior to this incident; and that the city had notice of this dangerous situation but had failed to remedy same.

The evidence shows that in June, 1973, the storm sewer cover broke approximately in half. One-half of the cover fell into the sewer, leaving the sewer partially uncovered. Mrs. Durham, in whose yard the cover was located, reported this condition to the City. No action was taken by the City until the summer of 1974 upon the third report by Mrs. Durham. The City then put the broken portion of the sewer cover, which had fallen into the sewer, back in place.

Another witness testified that in the summer of 1975, approximately one month before the incident here involved, he observed the sewer cover. At that time, one-half of the cover had again fallen into the sewer, leaving the sewer partially uncovered. This witness further testified that he called the City to report the defect and that no action was taken to remedy the dangerous condition until after claimant's injury.

1. We previously ruled in effect that the absence of a pleading that ante item notice of the claim had been given to the City, as required by Code Ann. § 69-308, was fatal to the claimant's action. The absence of such notice was never asserted in the court below, by defense pleadings or otherwise, and was not made an issue until this appeal. While the notice cannot be waived by the city authorities (City of Calhoun v. Holland, 222 Ga. 817, 819, 152 S.E.2d 752 (1966)), and is a condition precedent to recovery (Thompson v. City of Atlanta, 219 Ga. 190, 191(1), 132 S.E.2d 188 (1963)), the City of Macon by its failure to raise the issue below cannot now take advantage of the failure of the claimant to plead compliance with Code Ann. § 69-308. We will not on appeal decide an issue not raised in or passed on by the trial court. NAACP v. Overstreet, 221 Ga. 16, 30, 142 S.E.2d 816 (1965); Freeman v. City of Valdosta, 119 Ga.App. 345, 347, 167 S.E.2d 170 (1969). Consequently, upon reconsideration we have vacated our earlier opinion.

2. Horton contends that the trial judge erred in granting the City's motion for judgment notwithstanding the verdict. He contends that the evidence does not demand a finding for the City, and accordingly, the court erred in granting judgment notwithstanding the jury verdict. The standard for granting a judgment notwithstanding the verdict is the same as that for the granting of a directed verdict; and a verdict should not be set aside where the evidence construed in favor of the verdict supports it, however slightly. See Womack v. St. Joseph's Hospital, Inc., 131 Ga.App. 63(2), 205 S.E.2d 72 (1974).

Facts may be proved by circumstantial evidence as well as direct evidence. Old Colony Insurance Co. v. Dressel, 109 Ga.App. 465(2), 136 S.E.2d 525 (1964), affirmed 220 Ga. 354, 138 S.E.2d 886 (1964). Although there was no direct evidence that the sewer was uncovered at the time of Horton's fall, there was circumstantial evidence which...