Schaefer v. Mayor and Council of City of Athens

• Citation: 170 S.E.2d 339,120 Ga.App. 301
• Decision Date: 12 September 1969
• Docket Number: No. 44671,No. 2,44671,2
• Parties: Carolyn W. SCHAEFER v. MAYOR AND COUNCIL OF the CITY OF ATHENS
• Court: United States Court of Appeals (Georgia)

Page 339

170 S.E.2d 339

120 Ga.App. 301

Carolyn W. SCHAEFER v. MAYOR AND COUNCIL OF the CITY OF ATHENS.

No. 44671.

Court of Appeals of Georgia, Division No. 2.

Sept. 12, 1969.

William T. Gerard, Athens, for appellant.

Erwin, Epting, Gibson & Chilivis, Gary B. Blasingame, Athens, for appellee.

Syllabus Opinion by the Court

EBERHARDT, Judge.

Carolyn Schaefer brought suit against the City of Athens, alleging that on November 6, 1967, she was injured when she fell on its defective sidewalk, later amending and alleging an additional injury occurring when on March 15, 1968, she developed asceptic necrosis of the left femoral head and that this resulted from the defendant's negligence in maintaining its sidewalk and causing her fall. She alleged that the city had been given ante litem notice as required by Code Ann. § 69-308. Defendant answered, denying all allegations of negligence and that the ante litem notice required by law had been given. On motion of the defendant the plaintiff was required to reply to its defensive pleadings, and in so doing plaintiff alleged that written notice of her claim was given to the city May 6, 1968, and further asserted that (a) May 5, 1968 was a Sunday, affording plaintiff an extra day for giving the notice, (b) that her injuries had mentally and physically incapacited her from acting for herself and prosecuting her claim, during which time the statute requiring ante litem notice was tolled and extended, (c) the fact that she had suffered additional injury on March 15, 1968, extended the time for the giving of the notice, (d) the mayor and council of the city had actual knowledge of plaintiff's claim, for that it had been referred to an insurance company with which the city carried liability insurance and through its investigators the facts had been ascertained, and (e) that by referring the matter to its insurance company the city had actively undertaken an adjustment of the claim by an offer of settlement made by the company, thus waiving any defect in the ante litem notice.

On motion of the defendant the allegations of (a), (c), (d) and (e) were stricken as being impertinent, immaterial, irrelevant and setting out no justification for failure to give the ante litem notice in the manner required by the statute. The trial judge certified for review the order striking these portions of the plaintiff's pleading and plaintiff appeals. Held:

1. The requirement of ante litem notice in Code § 69-308 is a statute of limitation. City of Atlanta v. Barrett, 102 Ga.App. 469, 116 S.E.2d 654. Giving of the notice in the manner and within the time required by the statute is a condition precedent to the maintenance of a suit on the claim. Saunders v. City of Fitzgerald, 113 Ga. 619, 38 S.E. 978; City of Rome v. Rigdon, 192 Ga. 742, 745, 16 S.E.2d 902; Newton v. City of Moultrie, 37 Ga.App. 631, 141 S.E. 322.

2. The time within which the notice must be given in order to comply with the statute begins to run on the day the breach of the city's duty occurred. Silvertooth v. Shallenberger, 49 Ga.App. 133, 174 S.E. 365; Dowling v. Lester, 74 Ga.App. 290, 39 S.E.2d 576; Davis v. Hill, 113 Ga.App. 280, 147 S.E.2d 868; Crawford v. Gaulden, 33 Ga. 173(8); Lilly v. Boyd, 72 Ga. 83; Gould v. Palmer & Read, 96 Ga. 798, 22 S.E. 583.

3. That the statutory six months period for the giving of the notice ended on a Sunday did not extend the time to the Monday following. McLendon v. State, 14 Ga.App. 274, 80 S.E. 692; Brown v. Emerson Brick Co., 15 Ga.App. 332, 333, 83 S.E. 160; Davis v. Hill, 113 Ga.App. 280(2), 147 S.E.2d 868, supra; Curtis v. College Park Lbr. Co., 145 Ga. 601, 602, 89 S.E. 680; Texas Company v. Davis, 157 Ga. 538, 122 S.E. 62. The period is measured in months-not days.

4. That plaintiff discovered on March 15, 1968 that she then suffered additional injury from her fall on November 6, 1967, did not toll or extend the time for giving the requisite ante litem notice. Crawford v. Gaulden, 33 Ga. 173(3); Lilly v. Boyd, 72 Ga. 83; Gould v. Palmer & Read, 96 Ga. 798, 22 S.E. 583, supra; Silvertooth v. Shallenberger, 49 Ga.App. 133, 174 S.E. 365, supra; Dowling v. Lester, 74 Ga.App. 290, 39 S.E.2d 576, supra; Brewer v. Southern Gas Corp., 90 Ga.App. 81, 82 S.E.2d 171.

5. Code Ann. § 81A-106(a) provides for the computations of time applicable to proceedings after commencement of the action. It does not apply in determining the time within which an action may be instituted, or when it may be barred by a statute of limitation. Davis v. United States Fidelity & Guaranty Co., 119 Ga.App. 374, 167 S.E.2d 214, and citations. Consequently, it does not come to the aid of plaintiff in the giving of the requisite notice a day late, though the last day of the six months period fell on Sunday.

6. That the city governing authorities may have had knowledge of the fact that plaintiff had a claim which she expected to assert against the city, either from communications which do not meet the requisites of written notice under Code Ann. § 69-308, City of Calhoun v. Holland, 222 Ga. 817, 152 S.E.2d 752; Peek v. City of Albany, 101 Ga.App. 564, 114 S.E.2d 451; Allen v. City of Macon, 118 Ga.App. 88, 162 S.E.2d 783, or from a reference of the claim to an insurance carrier which undertook an investigation and settlement, can not work a waiver of the notice, an extoppel to assert lack thereof, or toll the time for giving it. Allen v. City of Macon, supra.

7. Since the allegations that the matter was referred to a liability insurance carrier for investigation and settlement were insufficient to show waiver or any basis for estoppel, they are improper in the pleadings of a tort action because they are irrelevant to the issue and they were properly stricken on motion. ¹ Perkins v. Publix Theatres Corp., 47 Ga.App. 641(7), 171 S.E. 147; McRee v. Atlanta Paper Co., 84 Ga.App. 181, 65 S.E.2d 832; Rodgers v. Styles, 100 Ga.App. 124(3), 110 S.E.2d 582; Shapiro Packing Co. v. Landrum, 109 Ga.App. 519, 521, 136 S.E.2d 446; Landrum v. McGehee, 116 Ga.App. 507(2), 157 S.E.2d 830. And compare Code Ann. § 56-2437; Shaw v. Miller, 215 Ga. 413, 414, 110 S.E.2d 759; Ray Clanton's East Ga. Motors, Inc. v. Conaway, 100 Ga.App. 650, 112 S.E.2d 218; Shook v. Sou. Ry. Co., 101 Ga.App. 128, 113 S.E.2d 155; Stuart v. Berry, 107 Ga.App. 531, 130 S.E.2d 838. It is proper under the Federal Rules, hence under CPA, to strike irrelevant, immaterial and impertinent matter in a pleading. Griffin v. Griffin, 327 U.S. 220, 66 S.Ct. 556, 90 L.Ed. 635; Burke v. Mesta Machine Co., D.C., 5 F.R.D. 134; Mottaghi-Iravani v. International Commodities Corp., D.C., 20 F.R.D. 37; Skolnick v. Hallett, 7 Cir., 350 F.2d 861. One test as to whether matter in a pleading is irrelevant, immaterial or impertinent is whether evidence in support of it would be admissible. Schenley Distillers Corp. v. Renken, D.C., 34 F.Supp. 678. It is well settled in this State that evidence relative to the existence of liability insurance or of negotiations which a company adjuster may have had with the injured party relative to a possible settlement of his claim is not admissible on a trial of the action. Code § 38-201; Green, Georgia Law of Evidence, § 73; O'Neill Mfg. Co. v. Pruitt, 110 Ga. 577, 578, 36 S.E. 59; General Supply Co. v. Toccoa Plumbing Co., 138 Ga. 219, 75 S.E. 135; Sims v. Martin, 33 Ga.App. 486(2), 126 S.E. 872; Heinz v. Backus, 34 Ga.App. 203(2), 128 S.E. 915; Decatur Chevrolet Co. v. White, 51 Ga.App. 362, 180 S.E. 377; Minnick v. Jackson, 64 Ga.App. 554(2), 13 S.E.2d 891; Huell v. Southeastern Stages, Inc., 78 Ga.App. 311(7), 50 S.E.2d 745; Wood v. Venable, 83 Ga.App. 498, 64 S.E.2d 387; McRee v. Atlanta Paper Co., 84 Ga.App. 181, 183, 65 S.E.2d 832, supra; Harper Whse., Inc. v. Henry Chanin...