Koehler v. Massell

Decision Date07 September 1972
Docket NumberNo. 27137,27137
Citation229 Ga. 359,191 S.E.2d 830
PartiesPaul R. KOEHLER et al. v. San MASSELL et al.
CourtGeorgia Supreme Court

Syllabus by the Court

The complaint stated a claim for relief both for injunction and for damages and it was error to sustain the motion to dismiss it.

Koelher & Russo, Michael L. Russo, Atlanta, for appellants.

William H. Duckworth, Jr., Henry L. Bowden, Marvin Arrington, Atlanta, for appellees.

HAWES, Justice.

Paul R. Koehler, individually, and as a taxpayer of the City of Atlanta and as a member, and for the benefit of all members of a class and on behalf of himself and all others similarly situated, brought suit against Sam Massell, Mayor of the City of Atlanta, and 17 other individuals, each described as an Alderman of the City of Atlanta, but sued as individuals and not in their official capacities, seeking an injunction and damages on account of described acts of the defendants done in their official capacities. Plaintiff alleged that the defendants, acting as the Mayor and Board of Aldermen of the City, have adopted the practice of authorizing the payment by the city of claims arising because of the negligent performance by city employees of governmental functions, designating such claims as 'moral obligations'; that there is no provision of law authorizing a municipal corporation to pay as a moral obligation a claim which a municipal corporation would not be legally obligated to pay because of governmental immunity; that for the past six years the amounts of funds thus unlawfully expended exceeds $300,000, and plaintiff sought a judgment against defendants jointly and severally in that amount, or in whatever other sum the evidence adduced upon the trial of the case should disclose to have been thus illegally paid out over the six years immediately preceding the bringing of the suit, such sums to be repaid to the general funds of the City of Atlanta, and plaintiff also sought an injunction against the defendants enjoining them from approving and paying in the future claims as moral obligations until the matter could be finally determined. The defendant, Marvin S. Arrington, filed separate defensive pleadings in which he denied that he had ever voted to pay moral claims and alleged that he had, on each occasion when the question had arisen in the Board of Aldermen, urged his colleagues not to approve any claim so categorized. The other defendants filed joint defensive pleadings in which they denied generally the allegations of plaintiff's complaint but admitted that the Board of Aldermen had by a majority vote in the past adopted resolutions authorizing payments in settlement of claims resulting from negligence in the performance of governmental duties; admitted that monies have been expended by the City of Atlanta in satisfaction of such claims which, though not legally enforceable because of the doctrine of governmental immunity, were authorized by the majority who voted for said resolutions 'based on a strong moral obligation and equitable duty to contribute to the payment of the damages of the claimant caused by employees and agents of the City of Atlanta.' Defendants denied the right of the plaintiff to recover a personal monetary judgment against them because the acts for which the plaintiff seeks a recovery were legislative acts performed in their official capacities, and because 'in all of the acts, they acted in the utmost good faith, without malice, fraud or personal gain.' The defendants also filed a motion to dismiss the complaint for failure to state a claim, and insofar as is sought a money judgment against the defendants individually, jointly and severally. The trial court sustained both grounds of the defendants' motion to dismiss, and that judgment is the subject of this appeal.

1. Since the adoption of the Civil Practice Act (Ga.L.1966, p. 609; 1967, p. 226; Code Ann. Title 81A) a complaint need not set forth a cause of action in order to withstand a motion to dismiss but need only to set forth a claim for relief. Under that title, the complaint may no longer be construed most strongly against the pleader. 'Furthermore, 'a motion to dismiss for failure to state a claim should not be granted unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim. If, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient.' 2A Moore, Federal Practice, 1706, § 8.13.' Mitchell v. Dickey, 226 Ga. 218, 220, 173 S.E.2d 695; Gill v. Myrick, 228 Ga. 253, 259, 185 S.E.2d 72; Johnson v. Wormsloe Foundation, 228 Ga. 722, 725, 187 S.E.2d 682. Applying these principles and the principles of law hereinafter set out, we have concluded that the complaint in this case was sufficient to withstand the motion to dismiss and the trial court erred in dismissing it.

2. Only recently this court has had occasion to reiterate the doctrine of governmental immunity. Crowder v. Department of State Parks, 228 Ga. 436, 185 S.E.2d 908. This doctrine means no more, however, than that a suit cannot be maintained against the State without its consent. As was pointed out in that case, the State can expressly consent to be sued, and the prerogative for granting that consent is in the legislature.

3. Municipalities are creatures of the legislature. They possess only such powers as are expressly delegated to them by the legislature. They possess no inherent powers. Churchill v. Walker, 68 Ga. 681, 686; City of Atlanta v. Gate City Gas Light Co., 71 Ga. 106, 124; Hogg v. City of Rome, 189 Ga. 298, 303, 6 S.E.2d 48. Accordingly, municipalities are not legally compellable or liable to pay claims arising by reason of negligence in the performance of their governmental functions unless the legislature has delegated to them the power and authority to waive their immunity from suit on claims arising because of negligence in the performance of such governmental functions. Code § 69-301; Collins v. Mayor, etc., of Macon, 69 Ga. 542, 544; Mayor and Council of Dalton v. Wilson, 118 Ga. 100, 101, 44 S.E. 830; Cornelisen v. City of Atlanta, 146 Ga. 416(1), 91 S.E. 415. The allegations of the complaint in this case plainly charged the defendants with improperly appropriating tax monies of the City of Atlanta to pay claims arising on account of the negligent performance of governmental functions within the broad spectrum of those functions as defined by this court in Aven v. Steiner Cancer Hospital, Inc., 189 Ga. 126, 141, 5 S.E.2d 356.

4. Under the provisions of § 56-2437 of the Act approved March 8, 1960 (Ga.L.1960, pp. 289, 673; Code Ann. § 56-2437), the legislature delegated to municipal corporations, counties and other political subdivisions of this State the right to waive governmental immunity with respect to injuries inflicted by reason of the ownership, maintenance, operation or use of any motor vehicle owned by such municipal corporations, counties, or other political subdivisions whether in a governmental undertaking or not. That section authorized municipalities and other political subdivisions of the State to procure insurance policies to cover liability for damages on account of bodily injury or death and damage to property of any person arising by reason of the negligent operation of any motor vehicle owned by such municipal corporation, county or other political subdivision. Under the provisions of that section, whenever a municipal corporation elects to purchase such insurance 'its governmental immunity shall be waived to the extent of the amount of insurance so purchased,' and neither such municipal corporation nor the insurance company shall plead governmental immunity as a defense, but may make only such defenses as could be made if the insured were a private person. It further provides that a municipal corporation procuring such insurance shall be liable for negligence as therein provided only for damages suffered while said insurance is in force and in no case in an amount exceeding the limits of coverage provided by such insurance policy. By an Act approved March 17, 1960 (Ga.L.1960, p. 2709) the legislature authorized municipalities having a population according to the 1950 or any later Federal census between 119,500 and 250,000 persons in their discretion to become self insurers under the provisions of § 56-2437. Section 2 of that Act provides: 'Each such municipality shall be authorized to provide for the amount and extent of self-insurance which such municipality shall assume, the necessary reserves needed, the minimum claim to be paid on each risk, and the type of additional or excess insurance coverage that may be required.' By an Act approved March 20, 1963 (Ga.L.1963, p. 2366) the general assembly made a similar provision for cities having a population between 116,500 and 119,500 persons according to the 1960 or any later Federal census, and by the Act approved March 21, 1970 (Ga.L.1970, p. 3207) the legislature enacted a similar delegation of authority to all municipal corporations of Georgia whose population, as determined by the 1960 or any later Federal census, shall be more than 400,000 persons. We take...

To continue reading

Request your trial
24 cases
  • Lathrop v. Deal
    • United States
    • Georgia Supreme Court
    • June 19, 2017
    ...sued in his individual capacity for monetary damages or other retrospective relief. As this Court explained in Koehler v. Massell , 229 Ga. 359, 366–367, 191 S.E.2d 830 (1972), a case involving a suit against the mayor and aldermen of Atlanta in their individual capacities for allegedly mak......
  • Palmer v. Hall
    • United States
    • U.S. District Court — Middle District of Georgia
    • July 29, 1974
    ...not possess inherent powers; instead, it possesses only such powers as are expressly delegated by the legislature. Koehler v. Massell, 229 Ga. 359, 191 S.E.2d 830 (1972). Evidence of express delegation by the legislature is found in the charter of each municipality including the City of Mac......
  • City of Atlanta v. Mitcham
    • United States
    • Georgia Supreme Court
    • February 16, 2015
    ...of a governmental function but may be liable for the negligent performance of their ministerial duties. See Koehler v. Massell, 229 Ga. 359, 361–362(3), 191 S.E.2d 830 (1972) ; Mayor and Aldermen of Savannah v. Jones, 149 Ga. 139, 141–142, 99 S.E. 294 (1919) ; Wright v. City Council of Augu......
  • Csx Transp., Inc. v. City of Garden City
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • March 27, 2003
    ...possess only such powers as are expressly delegated to them by the legislature. They possess no inherent powers." Koehler v. Massell, 229 Ga. 359, 191 S.E.2d 830, 833 (1972). As such, Georgia courts "have long acknowledged that municipal corporations have only limited power to enter into co......
  • Request a trial to view additional results
2 books & journal articles
  • Local Government Law - R. Perry Sentell, Jr.
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 58-1, September 2006
    • Invalid date
    ...Id. A dissenting opinion for one justice maintained that under the reasoning of the court's previous decision in Koehler v. Massell, 229 Ga. 359, 191 S.E.2d 830 (1972), "Common Cause's complaint does set forth a cause of action sufficient to survive a motion to dismiss." Common Cause, 279 G......
  • Local Government Law
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 67-1, September 2015
    • Invalid date
    ...of a governmental function, but may be liable for the negligent performance of their ministerial duties. See Koehler v. Massell, 229 Ga. 359, 362-63, 191 S.E.2d 830, 833 (1972). The function of the municipality in maintaining its streets and sidewalks to keep them safe for travel in ordinar......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT