Peek v. City of Albany

• Decision Date: 29 April 1960
• Docket Number: No. 38238,No. 2,38238,2
• Citation: Peek v. City of Albany, 114 S.E.2d 451, 101 Ga.App. 564 (Ga. App. 1960)
• Parties: H. D. PEEK v. CITY OF ALBANY
• Court: Georgia Court of Appeals

Page 451

114 S.E.2d 451

101 Ga.App. 564

H. D. PEEK v. CITY OF ALBANY.

No. 38238.

Court of Appeals of Georgia, Division No. 2.

April 29, 1960.

Syllabus by the Court

The individual acts of a city official will not create an estoppel or waiver of Code § 69-308, where it is not shown that such city official had the actual or delegated authority of the governing body to waive such municipal rights.

The plaintiff filed a suit for damages against the City of Albany. The petition alleged that the plaintiff was injured on October 30, 1958, when he stepped upon an improperly maintained water meter box which was owned by the city water distributing system. That after the plaintiff was released from the hospital he visited the mayor of the City of Albany about the middle of February, 1959, and told him the facts of his accident. That he requested the mayor to call a meeting of the city commissioners to handle his claim for damages and reimburse him for his injuries.

At this time, the plaintiff stated to the mayor that he contemplated seeking legal advice with regard to his claim, but he wanted to do the honest and honorable thing and give the defendant city a chance to indemnify him; that the mayor told the plaintiff that he did not need the services of a lawyer and that it would be the worst thing that he could do; that a lawyer would only stir things up, and the city would do the right thing for the plaintiff without the necessity of plaintiff securing legal counsel. It is alleged that the mayor stated that he would see the city manager and have a committee appointed from the city commission to meet with the plaintiff for the purpose of settling and disposing of his claim, and upon this assurance from the mayor, the plaintiff did not seek advice of an attorney; that on or about the 17th day of March, 1959, the plaintiff was called by the city manager who requested his presence at city hall for a meeting with reference to his claim; that the plaintiff went to city hall thinking he would meet with a committee promised by the mayor for the purpose of working out a settlement but when the plaintiff arrived at the meeting, only the mayor and city manager were in attendance; that the plaintiff told the city manager and mayor at this meeting that he had come to place the city on notice of his claim and to tell the committee about the nature and extent of his injuries; that the city manager mentioned the fact that the city attorney was not present at this meeting. At this point, the plaintiff stated that if any lawyer was going to be present, he wanted to get a lawyer to represent and advise him as to his rights; that the mayor again assured the plaintiff that it was not necessary for him to secure legal counsel and that it would be a great mistake for him to discuss the matter with an attorney since the city was going to do the right thing.

The petition alleged that the plaintiff heard nothing from the mayor or the city manager except a letter written to the plaintiff by the city manager under date of March 17, 1959, acknowledging their meeting on March 17, to discuss the injuries received by the plaintiff. On May 4, 1959, the plaintiff sought advice of legal counsel and on May 5, 1959, some six months and five days after the accident, a written demand was served upon the city.

The city admits in its brief that the petition sets forth a cause of action with the exception that it does not allege notice as required by Code § 69-308. After allowing several amendments, the trial court, on February 3, 1960, sustained the defendant's general demurrers, and to this order the plaintiff excepts.

J. Neely Peacock, Jr., Albany, for plaintiff in error.

Smith, Gardner, Kelley & Wiggins, Asa D. Kelley, Jr., Albany, for defendant in error.

FRANKUM, Judge.

Code § 69-308 provides: 'No person, firm or corporation, having a claim for money damages against any municipal corporation on account of injuries to person or property, shall bring any suit at law or equity against said municipal corporation for the...