Appellant-Mitchell,. plaintiff below, filed suit against the appellee-City of St. Marys (City) and an employee of the City, Tony Weaver. Mitchell’s complaint alleged that “[a]t approximately 8:30 o’clock p.m., on the 30th day of August, 1977, the defendant Tony Weaver, who was employed by the defendant, the City of St. Marys, backed a truck containing an insect fogger device up to the building where plaintiff was employed and sprayed plaintiff with a highly poison and toxic chemical which plaintiff could not avoid inhaling and which caused severe chemical reaction within plaintiff’s body and lungs resulting in her total disability ...” Mitchell sought recovery of $750,000 for loss of wages, pain and suffering and medical expenses.
The City answered, asserting several defenses to the action, including governmental immunity and the failure of Mitchell’s ante litem notice to comply with the requirements of Code Ann. § 69-308. The City then moved for judgment on the pleadings. The trial court found that Mitchell’s ante litem notice was in substantial compliance with the Code section and denied the motion on that ground. However, the motion was granted on the ground that the City, in spraying insecticide for the purpose of killing mosquitoes, was performing a governmental function and was, therefore, immune
1. As ante litem notice is a prerequisite to Mitchell’s suit against the City and if the motion should have been granted on this ground the main appeal will be mooted, we address the cross appeal in this case first.
The record demonstrates that within six months of the happening of the event upon which Mitchell’s claim was predicated, the following letter was sent by her attorney to the Mayor of the City:
“Please take notice that I have been retained to represent Martha Mitchell in the matter of a suit against the City of St. Marys, Georgia. Her injuries arose out of a chemical insecticide being sprayed by one of the City’s employees into the area where she was working by one of the City’s mosquito sprayers on the 30th day of August, 1977 and she was hospitalized for injuries to her lungs. This demand is made in compliance with Ga. Code Section 69-308 Acts 1899, P.74; [1953], Nov. S., P. 338; 1956, P. 183, 184.”
Code Ann. § 69-308 requires that one having a claim for money damages against a municipal corporation on account of injuries to person or property shall first give, within six months from the time the claim arose, written notice of the 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 ...” While the notice in the instant case approaches the outside permissible parameters of Code Ann. § 69-308, we hold it to be in “substantial” compliance with the statute.
Maryon v. City of Atlanta,
2. We turn to the issue presented in the main appeal — whether the motion was properly granted on the basis of governmental immunity. “Municipal corporations shall not be liable for failure to perform, or for errors in performing, their legislative or judicial powers. For neglect to perform, or for improper or unskillful performance of their ministerial duties, they shall be liable.” Code Ann. § 69-301. As noted, Mitchell’s complaint alleged that her claim arose as the result of inhaling poison and toxic chemical insecticide being sprayed from an insect fogger device by the City’s employee,
Mitchell, however, contends that even if spraying for mosquito eradication is a governmental function, the City’s motion for judgment on the pleadings was nonetheless erroneously granted. She relies upon Code Ann. § 56-2437 in this argument. That statute authorizes municipalities to secure insurance to cover liability for damage “arising by reason of ownership, maintenance, operation, or use of any motor vehicle by the municipal corporation,..., under its management, control or supervision, whether in a governmental undertaking or not ...” Subsection (2) of that statute further provides that whenever a municipality purchases such insurance, “its governmental immunity shall be waived to the extent of the amount of insurance so purchased.” Mitchell urges that since she has alleged the liability of the City for injuries resulting from being sprayed with insecticide from a City truck, there would be a waiver of governmental immunity to the extent that the City had secured liability insurance pursuant to Code Ann. § 56-2437. The City did not allege below, nor urge on appeal, the non-existence of such liability insurance. It contends, and the trial court agreed, that the existence of insurance pursuant to Code Ann. § 56-2437 has no application in the instant case. It is urged that Mitchell’s injury, alleged to be the result of spraying from the truck rather than the result of a more direct contact with the truck in its capacity as a “motor vehicle,” is not such an activity as is contemplated by insurance secured pursuant to Code Ann. § 56-2437 — “ownership, maintenance, operation, or use of any motor vehicle.” In short, the city defends its grant of judgment on the pleadings on the ground that Mitchell’s alleged injuries are not such as would be covered under a policy of insurance procured under the statute.
Winston v. City of Austell,
The pleadings in this case create no factual dispute as to Mitchell’s allegations that she was injured when a truck under the City’s management, control or supervision, and “containing an insect fogger device” sprayed her with insecticide. It is our opinion that the complaint is sufficient to allege that Mitchell’s injuries could be covered under a policy of insurance affording coverage for liability for damages arising from the “operation” or “use” of the truck.
Assurance Co. of America v. Bell,
Judgment in Case No. 59843 reversed. Judgment in Case No. 59844 affirmed.