Opinion
38473.
DECIDED OCTOBER 10, 1960.
Action for damages. Fulton Superior Court. Before Judge Pharr. June 6, 1960.
William B. Jones, for plaintiff in error.
Robert F. Lyle, contra.
1. Facts pleaded as to the negligence of the defendant were good as against general demurrer.
2. Dependency is not a condition precedent to an action for the tortious death of the child.
3. A municipal corporation is liable for torts committed in performing authorized work beyond the limits of the municipality.
4. The written notice given to the city was sufficient.
DECIDED OCTOBER 10, 1960.
Floyd B. Clanton by amended petition brought action against the City of Fairburn, Georgia, to recover damages for the wrongful death of his son wherein he alleged: that on or about August 2, 1957, the defendant was engaged in the operation of laying water pipe beside the eastern portion of Senoia Road, approximately 1/4 of a mile out of the Fairburn city limits, that his son, Joe Virgil Clanton, age 15, was operating a motor scooter proceeding in a northerly direction and approaching a portion of the defendant's operation; that as he approached the location there was a hill which blocked his view of the defendant's construction project; that there was a mound of dirt approximately 3 feet high on the eastern portion of Senoia Road placed there by the defendant and the plaintiff's son was traveling on the same side of the road where the mound of dirt was located; that sections of water pipe were placed end to end for approximately 75 yards south of the mound of dirt on the western shoulder of the road; that the city owned and parked a truck off the road immediately east of the mound of dirt and that this pipe, truck, and mound of dirt obstructing the road were not visible due to the hill between the plaintiff's son and said obstruction; that there were no signs, signals or devices giving warning of the work being done; that the mound of dirt completely blocked passage on that portion of the road on which it was located; that an automobile approaching the work project in a southerly direction was not visible to the plaintiff's son and as he suddenly viewed the mound of dirt, pipe, truck and automobile, he was unable to bring his motor scooter to a stop before he reached the obstruction, thereupon he struck the mound of dirt, lost control of the motor scooter and collided with the front end of the automobile, causing injuries which produced death on the following day; that the plaintiff is the sole surviving parent, his son's mother being deceased, and that the deceased son had no children or wife; that on August 18, 1957, demand for settlement was made to the City of Fairburn (Exhibit "A" to the petition); that the city refused by letter to make any adjustment (Exhibit "B" to the petition); that the plaintiff is damaged by the loss of his son for specified reasons in the amount of $135,000; that the negligence of the defendant was the sole proximate cause of the death.
To the amended petition the defendant filed renewed demurrers on the following grounds: (1) that the petition set out no cause of action against it; (2) that no dependency is alleged to exist in favor of the plaintiff; (3) that no cause of action is shown because the petition affirmatively shows that the acts complained of against the City of Fairburn were not the proximate cause of the death of the plaintiff's son; (4) that the petition affirmatively shows that the plaintiff's son did not have his motor scooter under control and was overrunning his vision at an excessive rate of speed; (5) that the petition affirmatively shows that the accident complained of occurred out of the city limits of Fairburn but alleges negligence of the city in failing to provide warning signs and signals; (6) that the notice given to the City of Fairburn is insufficient in that it stated that the accident occurred within the city limits of the City of Fairburn.
The court overruled the renewed demurrer and defendant excepts.
1. The plaintiff has alleged facts sufficient to show that the negligence of the defendant was the proximate cause of the accident. The petition does not affirmatively show that the victim's motor scooter was not under control or that the operator was overrunning his vision at an excessive rate of speed, and it is a matter of defense for the city to prove to the contrary. It does not appear from the petition that, if the defendant was negligent, its negligence was too remote to be considered the proximate cause of the accident.
2. Although, until 1952, dependency was a condition to an action to recover for the homicide of a child, the intention of the legislature that year is clear when it struck the provision of the Code ( § 105-1307) relating to dependency. Therefore, a father may, if there is no mother, wife or children, recover for the homicide of a child, minor or sui juris, irrespective of dependency.
3. On the question presented concerning the work conducted by the City of Fairburn outside the incorporated limits, it not being alleged that the project was ultra vires, this fact renders the city no less liable for its negligent acts. The case of City Council of Augusta v. Mackey, 113 Ga. 64 ( 38 S.E. 339) is the leading case in point. There it was stated: "A municipal corporation which is invested with power to construct a system of waterworks for the benefit of the city beyond its corporate limits, to accomplish which it has been specifically authorized to lay mains and pipes under and across public highways, is liable to one injured by the negligent execution of the power granted." The failure, by signal, sign or other warning device, to put the public on notice of a hazard may constitute negligence.
4. The purpose of the written notice required under Code Ann. § 69-308 is to put the city on notice so that it can investigate a claim for the purpose of determining whether it chooses to adjust the claim or contest its validity in the courts. Slight inaccuracies of the facts will not render the notice invalid. Aldred v. City of Summerville, 215 Ga. 651 ( 113 S.E.2d 108). Moreover, the city under the established principle of law cited, became estopped when, in its acknowledgment of the notice (Exhibit "B") it stated that it had made a complete and thorough investigation of the claim and that it denied the claim, the sole purpose of notice being to provide opportunity for complete investigation.
The court did not err in overruling the demurrers to the plaintiff's petition.
Judgment affirmed. Nichols and Bell, JJ., concur.