Dougherty County v. Edge

114 S.E.2d 862, 216 Ga. 100, 1960 Ga. LEXIS 397

• Court: Supreme Court of Georgia
• Decided: June 9, 1960
• Docket: 20816
• Status: Published

Opinions

Duckworth, Chief Justice.

1. The fact that the- suit is against the county and the petitioner alleges that the conditions complained of were 'created by the county do not cancel the further pleadings, filing a second original for service of said suit on the State Highway Department, as provided in Code (Ann.) § 95-1710 (Ga. L. 1957, p. 592), so as to remove the cause of action from the conditions set forth in Code § 95-1712.

2. So long as the opinions of this court in Taylor v. Richmond County, 185 Ga. 610 (196 S. E. 37), Hardin v. State Highway Board, 185 Ga. 614 (196 S. E. 40), State Highway Board v. Perkerson, 185 Ga. 617 (196 S. E. 42), State Highway Board v. Hall, 193 Ga. 717 (20 S. E. 2d 21), and Waters v. DeKalb County, 208 Ga. 741 (69 S. E. 2d 274), are allowed to remain and are not overruled, the meaning of Code § 95-1712, as they have construed it, applies to the claim for alleged damages to private property for a public use, upon which this case is based, and the provision in that section that the Highway Department is not liable for such damages until the road has been formally opened for traffic controls. This condition precedent 'to liability must be both alleged and proved. Such was not done in this case, and, hence, the Court of Appeals erred in affirming the judgment overruling the demurrers. This ruling renders nugatory all subsequent rulings in the cáse.

Argued May 9, 1960 Decided June 9, 1960. Eugene Cook, Attorney-General, Paul Miller, E. J. Summer our, Carter Goode, Assistant Attorneys-General, Donald E. Payton, Smith, Gardner, Kelley & Wiggins, for plaintiff in error. Burt & Burt, W. H. Burt, contra.

Judgment reversed.

All the Justices concur, except Quillian, J,. disqualified. Duckwoi'th, C. J., concurs specially.