Scott v. Hester, 35 S.E.2d 389

Scott v. Hester

35 S.E.2d 389 | Ga. Ct. App. | 1945

Where the petition for certiorari attacked the finding of the police committee of the mayor and general council of the City of Atlanta on the sole ground that it was without evidence to support it, and the certiorari was overruled and denied by the judge of the superior court, and where the record discloses that there was some evidence to support the finding and judgment of the police committee, the judgment overruling or dismissing the certiorari will not be disturbed by this court.

DECIDED SEPTEMBER 29, 1945. R. D. Scott, a policeman in the City of Atlanta, was detailed to guard the main pipes of the Atlanta Water Works running from the pumping station at the river to the reservoir on Hemphill Avenue at the place where the pipes were exposed at the Seaboard Airline Railway and Chattahoochee Avenue; and he was under instructions not to leave this post for any reason *890 until properly relieved. Charges were preferred against him by the chief of police of the City of Atlanta for neglect of duty and for violating the rules of the police department, in that he abandoned his duty and was absent from his post of duty, from 7:40 o'clock a. m. until 8:20 o'clock a. m. on November 12, 1943. He was tried before the police committee of the mayor and general council of the City of Atlanta, and was found guilty of the charge and dismissed from the police force of the city. He made application to the superior court of Fulton County for certiorari, and assigned error on the judgment of the police committee dismissing him from the police force, on the ground that it was contrary to the evidence and without evidence to support it. The judge of the superior court overruled and denied the certiorari, and he excepted to that judgment.

Captain L. J. Carroll testified to the effect that, R. D. Scott was a police officer working under him, and that, on the morning of November 12, 1943, he went to the place where Scott was assigned to work and found him absent from his post of duty, and, to Carroll's knowledge, Scott was not there for forty minutes from 7:40 a. m. to 8:20 a. m., and did not return to his post of duty that morning; that Scott's duties were to stay and guard that pipe line, and that he was under instructions not to leave there under any circumstances until relieved.

Scott made a statement to the police committee, to the effect, that he was sick on the morning of November 12, 1943, and he gave that as the reason for not being at his post of duty at the time in question. He claimed that another police officer, Byron Benson, told him to go home, if he was sick, and he would look out for Scott, and, if anybody came out there, he would tell them where Scott was; that Benson's station was some distance beyond his, and Benson agreed to relieve him until someone came out there, as Benson was early that morning and it was not time for him to go to work. Scott also stated that there was nothing against his record as a police officer. Benson testified to the effect that, he did not agree to relieve Scott on the morning in question, and did not tell him that he would relieve him; that he did relieve him on one occasion before that, but not on the morning of November 12, 1943. *891

The chief of police, M. A. Hornsby, testified, and introduced in evidence the police record showing that, R. D. Scott was tried in 1933 for conduct unbecoming an officer, and was found guilty and discharged from the department; that he was tried in 1937 for conduct unbecoming an officer, was found guilty and suspended for twenty-nine days; and that in October, 1942, he was tried for conduct unbecoming an officer and reprimanded.

There was other evidence before the police committee, but it is not deemed necessary to set it out here. We are of the opinion that there was sufficient evidence to authorize the finding of the committee, and that the judge of the superior court did not err in overruling and dismissing the certiorari. See Johnson v.Atlanta, 14 Ga. App. 257 (80 S.E. 508); Denton v.Wimberly, 23 Ga. App. 809 (99 S.E. 540).

Judgment affirmed. Felton and Parker, JJ., concur.