Purser v. Dodge County

• Decision Date: 15 June 1939
• Docket Number: 12819.
• Citation: 3 S.E.2d 574,188 Ga. 250
• Parties: PURSER v. DODGE COUNTY.
• Court: Georgia Supreme Court

3 S.E.2d 574

188 Ga. 250

PURSER v. DODGE COUNTY.

No. 12819.

Supreme Court of Georgia

June 15, 1939

Syllabus by the Court.

1. 'A county is not liable to suit for any cause of action unless made so by statute.' Code, § 23-1502.

2. There is no statute which subjects a county to suit for personal injuries caused by its negligence in paving or grading a highway, or for a defect therein, except injuries from a defect in a bridge on a highway. The fact that the highway has become a part of the State-aid system under the jurisdiction of the Highway Department, with the result that the county is under no obligation to pave or grade it, except by reason of its contract to do so, made with the highway department for the sole purpose of pecuniary gain to the county, does not operate to meet the requirement of the statute, so as to impose liability.

3. Under the preceding holdings, the question of the Court of Appeals as to the liability of a county to an action in tort such as indicated is answered in the negative.

The Court of Appeals certified to this court the following question: 'Is a county liable for damages and subject to suit for injury to a traveler on a highway caused by the negligence of the county in the performance of a contract between the county and the State Highway Department for the paving or grading of the highway which is a State-aid road under the jurisdiction of the Highway Department, which the county is under no duty to pave or grade, except under its obligation in the contract, and which contract is made by the county for the sole purpose of pecuniary gain?'

Will Ed Smith, of Eastman, and W. C. McAllister and H. E. Coates both of Hawkinsville, for plaintiff in error.

A Russell Ross, of Eastman, D. C. Chalker, of Hawkinsville, C E. Jackson, of Adel, W. Glenn Thomas, of Jesup, and Lamar Murdaugh, Asst. Atty. Gen., for defendant in error.

JENKINS Justice.

The authority delegated both to counties and to municipalities represents a part of the State sovereignty. Scales v Ordinary of Chattahoochee County, 41 Ga. 225, 226; 7 R.C.L. 923, § 2; 19 R.C.L. 691,§ 4. While at common law counties exercised functions pertaining only to their sovereignty, and therefore acted in a governmental capacity, with the result that they were held to be immune from suit (County of Monroe v. Flynt, 80 Ga. 489, 490, 6 S.E. 173; 14 Am.Jur. 237, § 78; 7 R.C.L. 966, § 40), the rule was different as to municipalities, which acted in a dual capacity, exercusing powers pertaining not only to their delegated sovereignty, but powers of ministerial or proprietary character. A distinction was therefore early drawn at common law with respect to suits against counties and suits against municipalities; the difference being that at common law a suit could not be maintained against a county at all, whereas, with reference to municipalities, the question of liability on contract depended on whether the contract as made was authorized by the grant or charter of the municipality, and of liability as for a tort depended on whether the cause of action arose out of the exercise of a governmental function, in which case the municipality was not liable, or whether it arose out of the exercise of a ministerial or proprietary function authorized by its grant or charter, in which case it was liable. Collins v. Macon, 69 Ga. 542, 544; Rivers v. Augusta City Council, 65 Ga. 376, 378, 38 Am.Rep. 787; Bond v. City of Royston, 130 Ga. 646, 61 S.E. 491, 18 L.R.A.,N.S., 409; 19 R.C.L. 697, § 9; 1081, § 368; 1109-111, §§ 391, 392; 1137, § 414. In this State, whatever may have been the changing functions of counties and cities, the rules as to their respective liabilities have been fixed and determined by the unambiguous language of the Code. While it is true that the liability of cities on their contracts is determined just as it was at common law, and under the...