Mayor and Council of Athens v. Schaeffer, 45524
| Decision Date | 16 October 1970 |
| Docket Number | No. 45524,No. 2,45524,2 |
| Citation | 178 S.E.2d 764,122 Ga.App. 729 |
| Parties | MAYOR AND COUNCIL OF ATHENS v. Carolyn W. SCHAEFFER. * |
| Court | Georgia Court of Appeals |
Erwin, Epting, Gibson & Chilivis, Gary B. Blasingame, Athens, for appellant.
William T. Gerard, Athens, for appellee.
This was an action involving a complaint against a municipality. The municipality made a motion for summary judgment on the gound that the complainant had not complied with the provisions of Code § 69-308, which provides that no action may be maintained against a municipal corporation unless the complainant 'within six months of the happening of the event upon which such claim is predicated' presents in writing such claim to the governing authorities of the municipal corporation, etc., the notice of such claim not having been presented until one day after the expiration of the 6 month period provided in the statute. The complainant as shown in her complaint, contended that subsequent to receiving the injury upon which the complaint is based, she was so mentally incapacitated as to toll the running of the statute of limitation under the provisions of Code §§ 3-801 and 3-802, which provide: After consideration of the pleadings, admissions, interrogatories, affidavits and depositions, the trial judge denied the municipality's motion for summary judgment and the municipality appealed to this court with the proper certificate of review. Held:
According to the definition of 'mental incompetence' contained in Code § 114-306 relating to the filing of workmen's compensation claims established by this court in Royal Indemnity Co. v. Agnew, 66 Ga.App. 377, 18 S.E.2d 57, there is no distinction between one mentally incompetent and one who is insane, and that the test to be applied as to the tolling of a statute of limitation is this: 'Is his mind so unsound, or is he so weak in his mind, or...
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