Appellant, acting pro se, filed the instant action on January 30, 1985. Appellant’s complaint alleged that appellee City of Elberton (City) and two of its former police officers were jointly and severally liable for injuries received “from the officers’ wrongful, intentional, malicious, and violent actions” during the arrest of appellant on October 17, 1982. Compensatory and punitive damages were sought. Appellees City and former officer McIntosh were served and both subsequently filed answers and motions to dismiss. The remaining defendant was never served. The trial court conducted a hearing on the motions to dismiss and appellees urged that appellant’s action was barred for two reasons: appellant’s failure to give the requisite ante litem notice to the City in accordance with OCGA § 36-33-5; and the running of the two-year statute of limitation applicable to actions for injuries to the person. OCGA § 9-3-33. Appellant appeals from the grant of appellees’ motions to dismiss.
1. Appellant contends that the trial court improperly conducted the hearing prior to the expiration of 30 days. However, the transcript of the hearing and the record reveal that nothing outside the pleadings was considered so as to convert the motions to dismiss into motions for summary judgment. See
Signal Knitting Mills v. Roozen,
2. Appellant asserts that no ante litem notice was required because his complaint set forth a cause of action under 42 USCA § 1983. Cf.
Davis v. City of Roswell,
Instead, it appears that appellant’s complaint alleged tort claims based entirely upon state law. As such, appellant’s claims were subject to the ante litem notice requirement. See
Shoemaker v. Aldmor Mgt.,
Moreover, even if timely ante litem notice had been given, appellant’s complaint could not have stated a claim upon which relief could be granted against the City. “A municipal corporation shall not be liable for the torts of policemen or other officers engaged in the discharge of the duties imposed on them by law.” OCGA § 36-33-3. Appellant’s complaint is based solely upon his arrest by the City’s officers. “A municipal corporation is not liable for the illegal arrest of a person by its police officers, nor for his consequent imprisonment.”
Gray v. Mayor & Council of Griffin,
3. The applicability of the holding in Division 2 of this opinion does not extend to appellee McIntosh, the former police officer whose arrest of appellant underlies the action. “ ‘[A]n employee who commits a wrongful or tortious act violates a duty he owes to one who is injured and is personally liable, even though his municipal employer may be exempt from liability under the doctrine of governmental immunity.’ [Cits.]”
Foster v. Crowder,
As noted previously, appellant’s complaint alleged that his tortious arrest took place on October 17, 1982. His complaint was not
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filed until January 30, 1985, clearly more than two years after the date of his arrest. However, appellant’s complaint also contains the following: “The statute of limitation is suspended from the evening of October 17, 1982 through February 1,1983 on [appellant’s]
incarceration
into the Georgia Regional Hospital at Augusta, his
commitment
November 16, 1982 as a mentally ill person, his release January 12, 1983 but
continued incarceration
at the supportive living home in Athens, Georgia through February 1, 1983. . . .” (Emphasis supplied.) Thus, appellant’s complaint purports to account for a tolling period which commenced on the date of his arrest and which terminated on a date less than two years prior to the filing of his suit. The issue is, therefore, whether appellant’s allegations regarding the tolling of the statute of limitation were sufficient to withstand a motion to dismiss. See generally
Lowe v. Pue,
Former OCGA § 9-3-90, the applicable statute in the instant case, provided as follows: “Minors, persons who are legally incompetent because of mental retardation or mental illness, or
persons imprisoned,
who are such when the cause of action accrues, shall be entitled to the same time after their disability is removed to bring an action as is prescribed for other persons.” (Emphasis supplied.) It is clear that, under this former statute, “a person imprisoned ha[d] the option of bringing an action while incarcerated or waiting until the period of incarceration end[ed]. If the latter option [was] chosen, the period of limitation [began] to run from the date of release, i.e., the time the ‘disability’ [was] removed.”
Maddox v. Hall County,
Former OCGA § 9-3-90 did not provide for tolling in the case of persons in prison, but for persons
imprisoned.
“Imprisonment is not confined to the act of putting a man in prison; it is a restraint of a man’s personal liberty. ... ‘It is not a necessary part of the definition that the confinement should be in a place usually appropriated to that purpose; it may be in a locality used only for the specific occasion; or it may take place without actual application of any physical agencies of restraint (such as locks or bars), but by verbal compulsion
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and the display of available force.’ ”
Savannah Guano Co. v. Stubbs,
Therefore, we hold that the trial court erred in granting appellee McIntosh’s motion to dismiss. Cf. Lowe v. Pue, supra. In so holding, we do not intimate that appellee may not yet prevail on the statute of limitation defense. It is possible that appellant was not so physically confined while at the hospital or the supportive living center as to be deemed “imprisoned” therein. If so, those periods would not toll the statute. However, resolution of this issue requires evidence which is not available in the context of a motion to dismiss. For purposes of a motion to dismiss, appellant’s “allegation, quoted above, is sufficient, as a matter of pleading, to invoke the tolling of the statute pursuant to [former OCGÁ § 9-3-90].” Lowe v. Pue, supra at 234.
4. The judgment is affirmed as to appellee City and is reversed as to appellee McIntosh.
Judgment affirmed in part and reversed in part. Birdsong, P. J., and Sognier, J., concur.