Rheberg v. Grady County

109 S.E. 542, 27 Ga. App. 578, 1921 Ga. App. LEXIS 279

Opinion

Broyles, C. J.

(After stating the foregoing facts.) As authority for the preceding headnotes we cite Elbert County v. Brown, 16 Ga. App. 834 (86 S. E. 651), and the many pertinent decisions there referred to and exhaustively discussed by Chief Judge Russell. If the ruling in the instant case as to the liability of a county for the tortious acts of its servant in wrongfully appropriating or damaging private property, for the benefit of the public, goes further than any direct holding in those cases, we think the extension fully warranted by the spirit of those decisions and the broad legal principles upon which they are based. In the light of the rulings in the headnotes, the petition set forth a cause of action against the county, and upon the trial every material allegation of the petition was supported by the proof. The mere fact that one of the witnesses for the plaintiff — the clerk of the commissioners of roads and revenues of Grady County — testified that the commissioners “ had a ■custom to never go on adjoining land for dirt without first getting the consent of' the owner ” did not show that the unlawful acts of their servant were done without the authority of the county commissioners and that such acts had never been ratified by them, the undisputed evidence showing that after their attention had been called to the unlawful appropriation of, and the damage to, the plaintiff’s property, they retained his dirt upon the road and failed to compensate him for it or for any of the damage to his property. Under the pleadings and the evidence, the plaintiff was entitled to recover for the damage to his wire fence, and for the damage to his tract of land. .It follows from what lias been said tliat tlie court properly overruled Uie demurrers to the petition, but erred in awarding a nonsuit.

Judgment on main bill of exceptions reversedj on cross-bill affirmed.

Luke and Bloodworth, JJ., concur.