16 S.E.2d 902 | Ga. | 1941
Lead Opinion
1. The Code, § 69-308, in the first instance provides for presentation in specified form, for adjustment, to the governing authority, of claims against municipal corporations, and inhibits institution of suit on the contemplated cause of action until after the claim is presented. This provision is immediately followed by the proviso that "said governing authority shall consider and act upon [the claim] within thirty days from said presentation; and that the action of said governing authority, unless it results in the settlement thereof, shall in no sense be a bar to a suit therefor in the courts." This provision of the statute is merely directory, and not a limitation of power, preventing consideration and action by the governing authority after the specified period.
2. Immediately following is the proviso that "the running of the statute of limitations shall be suspended during the time that the demand for payment is pending before such authorities without action on their part." Held:
(a) "Demand" as here employed refers to the same thing as "claim" in proviso number one.
(b) "Statute of limitations" contemplates the same as embodied in the Code, § 3-1004.
(c) "Pending" contemplates the intervening time between presentation of the claim and action thereon by the governing authorities.
3. On proper construction and application of the law to the instant case, the statute of limitations was inoperative from the date of presentation of the claim to the governing authority, which was within two years from the date of the injury, and the action was not barred by the statute of limitations.
"4th. In the opinion of the Court of Appeals the Court said:
`1. Where a claim for damages on account of injuries to person or property has, before the expiration of the statute of limitations, been filed with the governing authority of a municipal corporation as a condition precedent to the right of the claimant to file suit against the corporation, as provided in the Code, § 69-308, the statute of limitations is suspended during the pendency of the claim with the governing authority of the city without action thereon. City of Atlanta v. Truitt,
"5th. Petitioners except to and assign error on the decision of the Court of Appeals as above set forth, in that the same fails to take into consideration the following portion of the Code, § 69-308, as follows: `Provided, that upon the presentation of such claim said governing authority shall consider and act upon the same within thirty days from said presentation, and that the action of said governing authority, unless it results in the settlement thereof, shall in no sense be a bar to a suit therefor in the courts: . .'
"6th. Petitioner excepted to and assigned error on the decision of the Court of Appeals in holding: `2. It appearing from the petition in this case which is a suit against the City of Rome, in which the plaintiff seeks to recover for personal injuries alleged to have been received by her as a result of the defendant's negligence in the maintenance of one of its streets, that the cause of action accrued January 23, 1940 [1938?], and within the period of limitations, and that the defendant had never acted upon the claim, it does not appear that the plaintiff's cause of action had become barred by the statute of limitations upon the filing of the suit on February 24, 1940,' on the grounds that the said holding fails to take into consideration that portion of Code § 69-308, as follows: `Provided, that upon the presentation of such claim said governing authority shall consider and act upon the same within 30 days from said presentation, and that the action of said governing authority unless it results in the settlement thereof, shall in no sense be a bar to a suit therefor in the courts: . . ' and upon the further ground that the same fails to take into consideration the decision of this court in the case ofPeterson v. Georgia Railroad Banking *744 Co.,
"7th. Petitioner excepts to and assigns error on the decision of the Court of Appeals in holding: `3. The court did not err in overruling the demurrer to the petition based upon the ground that the plaintiff's cause of action, which accrued on January 23, 1938, had become barred under the statute of limitations upon the date of the filing of the suit on February 24, 1940,' on the ground that in so doing the Court of Appeals overlooked that portion of Code § 69-308, as follows: `Provided, that upon the presentation of such claim said governing authority shall consider and act upon the same within 30 days from said presentation, and that the action of said governing authority unless it results in the settlement thereof, shall in no sense be a bar to a suit therefor in the courts: . .' and upon the further ground that the decision of the Court of Appeals fails to take into consideration the provisions of Code § 3-1004, as follows: `Injuries to the person. Actions for injuries to the person shall be brought within two years after the right of action accrues, except for injuries to the reputation, which shall be brought within one year,' and upon the further ground that the Court of Appeals failed to take into consideration the decision of this court in the case of Peterson v. GeorgiaRailroad Banking Co.,
It will be observed that length of time in which to consider and *746
act upon the claim as mentioned has reference to consideration and action by public officers as affecting the public interest. It is not declared that the governing authority may not consider and act upon the claim after thirty days have elapsed. It could be to the public interest to have longer than thirty days. The object is to facilitate adjustment without suit, and there is no express withdrawal of power to consider and act. In this view, the quoted part of the first proviso is merely directory, and not a limitation of authority. Horkan v. Beasley,
But aside from this, as the provision of the statute specifying the thirty days is merely directory, and the claim if not acted upon would be still pending after thirty days, no presumption could arise during such pendency by mere lapse of thirty days that the governing authority had considered and refused the claim. Much less could a conclusive and unrebuttable presumption arise from such lapse of time. The petition to which the demurrer relates alleges that the governing authority did not act upon the claim before commencement of the action. If it should be contended that the action is barred because the plaintiff could have filed suit immediately after expiration of thirty days from the date of presenting the claim, even though the governing authorities may not have acted thereon, the answer would be: Even if the plaintiff could have sued immediately after expiration of such period, she was not obliged to do so, but could abide delayed action by the governing authorities, relying on the Code, § 69-308, to do what it said, to wit, suspend the statute of limitations "during the time that the demand for payment is pending before such authorities without action on their part." It is true, as a general rule, that a statute of limitations runs and continues to run from the time that a complete cause of action arose; that is, from the time that plaintiff could have sued. The vice in the theory last mentioned, however, *748 is that it seeks to apply this rule or test as though it stood without exception or qualification. As applied to this case, there is an exception or qualification. It is found in the second proviso of § 69-308, just quoted. In other words, when the plaintiff, though having the right to sue immediately after expiration of the thirty-day period, nevertheless did wait longer pending action on the demand by the municipal authorities, she did so by permission of the law as well as under guaranty of the law that so long as the claim was pending without action the statute would not run against her. It necessarily follows that her case is not to be governed by the general rule as to computing the limitation period from the time the cause of action accrues, but that it is governed by the exception or qualification indicated, so far as relates to the statute of limitations.
The foregoing construction and application considers and gives effect to all the provisions of the statutes mentioned. Applying them to the case at hand, the action does not appear to be barred by the statute of limitations. The case of Peterson v. GeorgiaRailroad Banking Co.,
Judgment affirmed. All the Justices concur, except
Dissenting Opinion
It is conceded in the majority *749 opinion "that as a general rule a statute of limitations runs and continues to run from the time that a complete cause of action arose; that is from the time the plaintiff could have sued." It seems also to be conceded that suit might have been brought upon the expiration of the thirty-day period, but it is reasoned that the plaintiff was not obliged so to do.
Although, as to the governing authorities, the provision that the municipality "shall consider and act upon the same within thirty days" may be, as in the majority opinion treated, directory only, it still must be determined what effect the act had on the statute of limitations, which was otherwise operative under the law. It is true that it is provided that the limitation statute shall be suspended while the claim is pending before the municipality, but it also provides that the claim shall be acted on within thirty days; and, as pointed out by Judge Felton in his dissenting opinion in City of Atlanta v. Truitt,