Thompson v. City of Atlanta, s. 22081
| Decision Date | 12 July 1963 |
| Docket Number | 22083,22085,22082,22084,Nos. 22081,s. 22081 |
| Citation | 219 Ga. 190,132 S.E.2d 188 |
| Parties | Robert Alton THOMPSON v. CITY OF ATLANTA. R. F. WHEELER v. CITY OF ATLANTA. Hugh K. ALBEA v. CITY OF ATLANTA. Ralph E. DYER et al. v. CITY OF ATLANTA. Glenn E. ROHRBAUGH v. CITY OF ATLANTA. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. The petitions insofar as they claim money damages on account of injuries to persons and properties are subject to general demurrer because they fail to allege that the ante litem notice required by Code Ann. § 69-308 was given to the defendant municipality.
2. The petitions insofar as they seek against the City of Atlanta injunctive relief from injuries allegedly caused to persons and properties by airplanes taking off and landing at the Atlanta Municipal Airport are subject to general demurrer because they do not allege that the city operates the airplanes, or has done anything at any time to require or compel the airplanes to pass over the plaintiffs' properties in the manner alleged, or is in any way responsible therefor.
Five petitions seeking injunctive relief from and damages for injuries allegedly caused by aircraft taking off and landing at the Atlanta Municipal Airport were brought against the City of Atlanta by landowners whose residential properties are situated near the airport. The petitions are identical except for names and addresses of the plaintiffs and except that in the Wheeler case the petition seeks a larger sum of money as damages and was amended. Error is assigned upon judgments of the trial court sustaining general grounds of demurrer numbered 1 and 23 and dismissing all five petitions.
Chas. H. Bruce, Henry M. Henderson, Atlanta, for plaintiffs in error.
J. C. Savage, Robert S. Wiggins, Atlanta, for defendant in error.
1. In ground 23 of its demurrers, the City of Atlanta demurred generally to any and all portions of the petitions seeking money damages from defendant on the ground that the petitions did not affirmatively show that the ante litem notice required by Code Ann. § 69-308 was given to defendant. That section provides in part that '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 same, without first, and within six months of the happening of the event upon which such claim is predicated, presenting in writing such claim to the governing authority of said municipality for adjustment, stating the time, place, and extent of such injury, as nearly as practicable, and the negligence which caused the same, and no such suit shall be entertained by the courts against such municipality until the cause of action therein shall have been first presented to said governing authority, for adjustment.' (Emphasis added). The Code section states plainly and unequivocally that the notice therein required shall be given in any suit at law or equity wherein plaintiff claims from a municipality money damages on account of injuries to his person or property. The words 'any suit' clearly mean that in every suit wherein such damages are sought, notice shall be given. The petitions allege that severe noises, vibrations, and air wave concussions from airplanes taking off and landing at the Atlanta Municipal Airport have injured plaintiffs' residential properties in enumerated ways and, further, have caused certain enumerated personal injuries to plaintiffs and their families. Money damages are sought from the City of Atlanta on account of these alleged injuries. The trial court properly sustained the twenty-third ground of demurrer and dismissed the petitions insofar as they seek to recover damages for injuries to persons and properties. Saunders v. City of Fitzgerald, 113 Ga. 619, 38 S.E....
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...court because the case requires only the application of constitutional provisions and not their construction. 2. Thompson v. City of Atlanta, 219 Ga. 190, 132 S.E.2d 188 and Dyer v. City of Atlanta, 219 Ga. 538, 134 S.E.2d 585 are 3. (a) The owner of private property which has been taken by......
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