Tanner v. City of Gainesville, 63310

• Decision Date: 28 April 1982
• Docket Number: No. 63310,63310
• Citation: 162 Ga.App. 405,290 S.E.2d 541
• Parties: TANNER v. CITY OF GAINESVILLE.
• Court: Georgia Court of Appeals

Page 541

290 S.E.2d 541

162 Ga.App. 405

TANNER v. CITY OF GAINESVILLE.

No. 63310.

Court of Appeals of Georgia.

April 28, 1982.

Edmund A. Waller, Gainesville, for appellant.

John H. Smith, Steven P. Gilliam, Gainesville, for appellee.

SHULMAN, Presiding Judge.

On August 15, 1976, a wind storm blew through Gainesville causing one wall of a partially demolished building to topple, scattering debris into the street. Both a police officer and the city engineer were called to the scene, where they saw the unsupported erect west wall of the building swaying in the wind. The city engineer asked the operator of a front-end loader (at the scene in order to clear the debris from the already fallen wall) to apply pressure to the exterior of the swaying wall, thereby causing it to fall within the building. This action was taken without the knowledge or permission of appellant, the owner of the building, and he subsequently sought reimbursement from the city for the damage he allegedly sustained. Summary judgment was granted the city on the grounds that appellant failed to give the appropriate ante litem notice required by Code Ann. § 69-308; that the actions taken by the city were an exercise of its police powers and were the result of an emergency; and that the city was not liable for negligence when the action complained of was taken in order to abate a nuisance. In his appeal to this court, appellant takes issue with all three grounds on which the grant of summary judgment to the city is based.

1. Appellant maintains that the trial court erred when it held as a matter of law that appellant had failed to comply with Code Ann. § 69-308, which requires, as a prerequisite to the commencement of a lawsuit against a municipal corporation for money damages based on injury to person or property, that written notice of the claim be presented to the governing authority of the city within six months of the happening of the event upon which the claim is predicated.

Through an affidavit filed in support of the city's motion for summary judgment, the city manager stated that he first received notice of appellant's claim against the city on October 3, 1977, over one year after the demolition of the wall. He further stated that all city personnel are instructed to forward any notice of a claim to his office and that a review of the city's records of claims made against it since August 15, 1976, reveals no notice of a claim by appellant prior to October 3, 1977.

Attached to appellant's affidavit filed in response to appellee's motion for summary judgment is a copy of a letter dated September 6, 1976, addressed to "Mayor's Office, City of Gainesville, Gainesville, Ga. 30501." In his affidavit, appellant swore that the letter was placed in an envelope bearing the same address and sufficient postage, and deposited in the mail on September 6, 1976. We must agree with appellant that his affidavit with the above-described exhibit raises a factual issue as to whether appellant sent sufficient notice of his claim to a proper city official within the six-month period immediately subsequent to the August 15 incident.

Code Ann. § 69-308 "is in derogation of the common right, and should be strictly construed as against the municipality." Maryon v. City of Atlanta, 149 Ga. 35, 36, 99 S.E. 116; Hicks v. City of Atlanta, 154 Ga.App. 809, 810, 270 S.E.2d 58. "In order for notice to be in compliance with § 69-308, it must be addressed to and received by the municipality or one of its departments or officials." Chiles v. City of Smyrna, 146 Ga.App. 260, 263, 246 S.E.2d 117. The address of the notice was in "substantial compliance" with the statute. Mitchell v. City of St. Marys, 155 Ga.App. 642(1), 271 S.E.2d 895; Washington v. City of Columbus, 136 Ga.App. 682(5a), 222 S.E.2d 583; Hicks v. City of Atlanta, supra. See also City of LaFayette v. Rosser, 53 Ga.App. 228(3), 185 S.E. 377. The notice, as addressed, was sufficient, especially in light of the fact that the Gainesville mayor is a member of the city's governing body, the Board of Commissioners. See Peek v. City of Albany, 101 Ga.App. 564, 114 S.E.2d 451; Ga.L.1922, p. 834, §§ 2, 3, 14.

2. Appellee cites City of Tallapoosa v. Brock, 138 Ga. 622, 75 S.E. 644; City of Atlanta v. Fuller, 118 Ga.App. 563, 164 S.E.2d 364; and Jones v. City Council of Augusta, 100 Ga.App. 268, 110 S.E.2d 691, in support of the proposition that "the mere mailing to the Mayor of such a notice is not sufficient." In City of Tallapoosa, supra, Division 2, the Supreme Court held that a petition directed to and served on the mayor, which "merely notified him that the injured person would file suit against the city for the injury ... [was] a notice merely of an intention to sue the city, directed to the mayor, [and] was not such a presentation of the claim or demand to the governing authorities for adjustment as to meet the requirements of the statute." This court has cited this portion of City of Tallapoosa for two different legal theories: that mere notice of an injury coupled with an announcement of an intent to file suit against the city for the injury does not constitute a presentation of the claim or demand as required by Code Ann. § 69-308 (Jones v. City Council of Augusta, supra, Division 3), and that written notice of a claim to the mayor is not sufficient, Allen v. City of Macon, 118 Ga.App. 88, 89, 162 S.E.2d 783; Lewis v. City of Moultrie, 31 Ga.App. 712(4), 121 S.E. 843. In light of the trend we perceive emerging from the courts of this state toward substantial compliance with Code Ann. § 69-308 insofar as the recipient of the notice of claim is concerned (see, e.g., Mitchell v. City of St. Marys, supra; Hicks v. City of Atlanta, supra; Washington v. City of Columbus, supra; City of Atlanta v. Fuller, supra; and Davis v. City of Rome, 37 Ga.App. 762(4), 142 S.E. 171), we adopt the interpretation of City of Tallapoosa as set forth in Jones and Judge R. C. Bell's dissent in Lewis, and overrule that language in Lewis v. City of Moultrie and Allen v. City of Macon which intimates or holds that notice served on the mayor is insufficient. We find it unnecessary to overrule City of Atlanta v. Fuller, since the citation there to City of Tallapoosa is mere dicta. Hence, we conclude that ante litem notice addressed to and received by the mayor is sufficient compliance with § 69-308.

3. Appellee maintains that, even if it is assumed that the mailing of the notice to the mayor was sufficient, the content of the notice sent was insufficient as a matter of law. The letter allegedly sent by appellant reads as follows: "This is to confirm my telephone conversation with Mr. Moore on August 27, 1976 as to who was responsible for the decision to tear down the west wall of the old Jim Wilson Chevrolet building, which was left standing after the storm struck on Sunday August 15, 1976. As soon as replacement items can be located so that prices can be established, a bill will be rendered for the damages done to the materials that were being salvaged."

Code Ann. § 69-308 requires that the written claim to the municipality for adjustment must state, "as nearly as practicable," the time, place, and extent of the injury, as well as the negligence which caused the injury. "The purpose of the law was simply to give to the municipality notice that the...