49 Ga. App. 152 | Ga. Ct. App. | 1934
“A county is not liable to suit unless there is a law which in express terms or by necessary implication so declares. And this is true whether the alleged cause of action arises from the negligent performance of duties which the county authorities are compelled to perform, or a negligent discharge of duties voluntarily assumed in the exercise of a discretion vested in them by law.” Millwood v. DeKalb County, 106 Ga. 743 (32 S. E. 577). The State is never suable except by express enactment, and this is also true of subdivisions of the State. Counties are such subdivisions, clothed with public duties belonging to the State, which for convenience are divided among such local organizations. The county is a corporation for certain specified purposes. Its function is separate and apart from that of municipalities. “A county is a subdivision of the State imposed upon the people for State purposes.” Counties, to be liable in an action at law for damage done by those who construct or repair public roads or bridges, must by statute be subject to such an action. Counties were not liable to suit at common law; and it is for this reason that the several counties of this State, as political divisions, exercising a part of the sovereign power of the State, can not be sued except where it is provided by statute. Counties are liable, under the constitution of this State, for the taking or damaging of private property for public purposes. These provisions of the constitution itself have been strictly construed by our courts. Originally it was provided by the constitution that private property could not be taken for public purposes without just compensation being paid therefor. A resultant or consequential damage was held not to be within the purview of the provision. Mayor &c. of Rome v. Omberg, 28 Ga.
In the act of 1818, as codified in the Code of 1882, § 670, it was provided that the ordinary (he being the person at the time having charge of the fiscal affairs of the county) should have power to select the place for the erection of bridges, etc., and the power to make suitable provision for their erection or repair, “by letting them out to the lowest bidder, hiring.hands, or in any other way that may be for the public good and agreeable to law.” It was also his duty to require a bond for the faithful performance of the work and to “indemnify for all damages occasioned by a failure so to do.” In section 672 of the Code of 1882 it was provided that when a contract for such a bridge is let out, the contractor must in his bond make a condition to keep the same in repair for seven years. A county was liable in an action brought by reason of a defect in and damage occasioned by such a bridge when it appeared that no bond had been taken; and it was necessary to plead and prove that no bond had been taken in the erection of such a bridge, in order to maintain an action against the county thereon. Collins v. Hudson, 54 Ga. 25; Arline v. Laurens County, 77 Ga. 249 (2 S. E. 833). In 1888 this section was amended and the county made primarily liable for all injuries caused by reason of defective bridges, whether erected by contractors or by county authorities; and this provision is embodied in the. Code of 1910, § 748. This section, however, is applicable only to bridges built subsequently to the act of December 29, 1888. See Counties of Bibb and Crawford v. Dorsey, 90 Ga. 72 (15 S. E. 647); Seymour v. Elbert County, 116 Ga. 371 (42 S. E. 727); Butts County v. Johnson, 136 Ga. 354 (71 S. E. 428). The provisions of § 748 have been strictly construed and the liability of the county not enlarged. It has been decided that the provisions of this section do not apply to county-line bridges. Brooks County v. Carrington, 7 Ga. App. 225 (66 S. E. 625).
The enlarged importance of public roads and highways within the last twenty years has necessarily brought about changing conditions in building, management, and control of the main highways
It is thus seen that the county is relieved of the duty of responding for any neglect or failure of the highway department, by vouching the department in the manner provided. The damages for which the county is liable, and from which liability it may relieve itself as pointed out above, is the liability “under existing laws.” This phrase does not mean any liability that existed at the time of the taking over of such road alone, but any subsequent liability incurred while the road is under the control of the highway department. As was said in Lincoln County v. Gazzaway, 43 Ga. App. 358 (158 S. E. 647): “The provisions of this section of the act of 1919 operate to fix in the county in which the highway is situated the situs of litigation on account of claims against the highway department, in suits against the county as defendant, for any cause for which a county is liable to suit under existing law, originating on a highway taken over by the highway department, and to provide a method by which service of any such suit against the county may be made upon the highway department so as to establish jurisdiction for the determination of such cause, as against the highway department, but proceeding against the county as defendant, in the courts of the county in which the highway upon which the cause of action originated is situated.” In an action of this kind, it is a condition precedent to the liability of the highway department that liability be established as against the county. All the regulations necessary to fix the-liability of the county must be observed, such as the giving of notice to the constituted authorities of the county and the bringing of the action within twelve months, and the action itself must be one for which under existing law the county is liable. Felton v. Macon County, 43 Ga. App. 651 (159 S. E. 730). A county is primarily liable for defective bridges, and this liability continues though the construction and maintenance of such bridge is a responsibility of the highway department. Early County v. Fain, 2 Ga. App. 288 (58 S. E. 528). A county is also liable where it takes or damages private property for itself, and
The bridge at the time of this injury was shown by the evidence to be under repair, and traffic had been deflected around the bridge over a temporary wajq and the bridge had been taken out to be repaired. As was held in the case of Havird v. Richmond County, 176 Ga. 722 (168 S. E. 897): “A. county is primarily liable for injuries caused by a “defective bridge’ within the meaning of the Political Code (1910), § 748, where, on a fill or embankment approaching a bridge, which it is assumed constitutes part of the bridge, there is erected and maintained by the county in the roadway an obstruction placed there for the purpose of causing a deflection of traffic while the bridge is being repaired, but which is negligently maintained by the county in a condition hazardous to traffic. Whether the failure to have lights or other warnings on the approach to the bridge on a dark night, to warn travelers, would constitute negligence would be a question for a jury, to be determined in each case from the circumstances of the particular case, under proper instructions of the court as to the respective duties of both the county and the traveler.” It appears that the negligence complained of in this case was the alleged negligence of the highway department, which was at the time repairing said bridge and which had temporarily deflected traffic around the bridge, to place such notices, signs, lights, or obstruc
Judgment affirmed.