The City Of Atlanta v. Dooly
| Decision Date | 28 February 1885 |
| Citation | 74 Ga. 702 |
| Parties | The City of Atlanta. vs. Dooly, surviving partner. |
| Court | Georgia Supreme Court |
Torts. Municipal Corporations. Damages. Non-suits. Partnership. Before Judge Hammond. Fulton Superior Court. September Term, 1884.
Kries & Dooly, as partners in the business of bill-posting, sued the city of Atlanta for $2,500.00, for the destruction of a bill-board and the loss profits in displaying advertisements of theaters, shows, circuses and patent medicines. Kries died before the trial, and an order was taken allowing the case to proceed in the name of M. J. Dooly as surviving partner. Defendant having demurred to the declaration, plaintiff amended, averring that the city tore down the bill-board under its general power to abate nuisances, but without complying with the law in respect thereto.
The evidence for the plaintiff was, in brief, as follows: On a petition of certain citizens and a report of the committee on fire department, the city council ordered a billboard, belonging to Kries & Dooly, to be torn down, and the chief of police caused this to be done under a note from the clerk of council requesting him to do so. The owners of the board petitioned the council to replace it, or allow it to be replaced, and to pay them $125.00 damages. This was referred to the committee of council on contested claims and litigation, but was never granted. The same advance agents of shows generally come through the country each season, and they knew of this bill-board. On the subject of the damages incurred, the plaintiff testified, in brief, as follows:
The bill-board was worth and would cost $125.00. It was a structure of planks nailed to posts, fronting on Whitehall and Fair streets, in this city. Kries made most of the contracts, and before his death sold out all rights in the partnership, including this bill-board, to his wife, We lost $125.00 from Sells Brothers' circus. Mr. Sellssaid that was what he would have paid if the board had been standing. We had a letter from Sells\' agent before the board was taken down, requesting us to save all the boards in the city for them. It was the best board we had in town. We had some others here where we posted up these placards. The board was torn down in September, 1883, and the loose lumber left on the ground. Negroes and others came and carried some of it away for firewood, and a fence was built from some of it. We made no attempt to replace it ourselves, but petitioned the city council for $125.00, and the council to put it back. In the spring of 1SS4, CO to 64 theatrical companies came to Atlanta. They would all have used that board. I can\'t give the names of the companies, but we would have made from $4.00 to $5.00 from each of said companies. I always lay out the paper. Most of these companies asked for that board. I would have used it, if they had not asked for it. By not having the board to paste the posters on, we lost about $4.00 on each company. In addition, we lost $100.00, I think, on Dr. Carver\'s Indian show. They paraded through the streets. We advertised Carver elsewhere, and he would have paid us $100.00 more if we could have used this board. Don\'t remember what Carver did pay us. We tried to stop them from tearing down the board. We went to see Mayor Goodwin, at his office, about it. He was absent from the city; but we did see him later on, and he telephoned to police headquarters, if the board had not been torn down, to postpone it until Monday. The answer came that they were then tearing it down. Mr. Kries went to where the bill-board was torn down. I did not go out there for a month We went out there before the removal of the bill-board, and stopped up all the holes that little negro boys would crawl under and cause complaint by the neighbors.
Cross-examined: We had no special contract in writing with any of these shows or companies. They made the contracts with Mr. DeGive, at the opera house. We hada contract with Mr. DeGive, to furnish him such space as he wanted, and to do all his bill-posting. The agents of the theatrical companies would lay out the paper, and we would put it up, and Mr. DeGive would pay us for it. We made contracts with four or five of the companies, who rented the opera house, themselves. 1 can\ circus, nut 1 was not present. I made the contract with Dr Carver\'s Indian show, or his agent. I posted all the bills he gave me to put up. On passing the place where the bill-board formerly stood, Dr. Carver\'s agent said if he could advertise on that bill-board now, he would give us $100.00 more. This was before they posted his bills. I suppose it would have cost $75.00 to replace the bill-board after it was torn down.
Re-direct: Mr. DeGive had nothing to do with the board, and it made no difference whether he knew it was there or not. The agents selected the boards and, as near as I can judge, we lost $4.00 on each company. Kries & Dooly were licensed bill-posters, and paid their license fee to the city.
The chairman of the committee on contested claims and litigation, a witness for the defendant, testified that no report had been made, but it was understood that the suit might be brought, and if the matter should be settled, the suit should be dismissed. He also stated that he had no idea of making a favorable report on the petition. In addition to this, the evidence on behalf of the defendant showed that the board could have been constructed in a day; that it was made of old, second-hand lumber, and the cost of the labor of replacing it would be about $15.00.
Defendant also introduced L. DeGive, who testified, in brief, as follows: I made the contracts with Kries & Dooly to post bills for all companies playing in my opera house. The agents of the troupes would go to them and arrange for the posting, and I would pay the bills. I never saw, and knew nothing of, this bill-board on Whitehall and Fair streets.
The jury found for the plaintiff $300.00. Defendant moved for a new trial, on substantially the following grounds:
(1.) Because the...
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