Bates v. Madison County , 32 Ga. App. 370 ( 1924 )

Jenkins, P. J.

1. “A county is not liable to suit for any cause of action unless made so by statute.” Political Code (1910), § 384. It is the general rule that “a county, when exercising governmental functions and acting as an agency of the State, is not liable, in the absence of statutes imposing liability, for its failure to perform a duty or for its negligent performance of the duty, not even when the duty is imposed by statute; and there is no distinction in the application of this rule between the neglect to perform an act -which ought to have been, performed, and the performance of the duty in a negligent manner.” 15 C. J. 568, § 272; Millwood v. DeKalb County, 106 Ga. 743 (32 S. E. 577); Mitchell County v. Dixon, 20 Ga. App. 21 (92 S. E. 405).

Decided May 17, 1924.

2. “Private property shall not be taken or damaged for public purposes, without just and adequate compensation being first paid.” Park’s Code, § 6388. Accordingly, where the tortious acts of the officers, agents, and servants of a county amount to the taking or injury of private property directly for the public use, the county can be held liable to the extent of the injury sustained, not on the theory that the county is liable, as are other tort-feasors, for the negligent acts and conduct of its agents while acting within the scope of their authority, but for the reason that it cannot, either with or without the guise of contractual authority, appropriate or damage the property of another for its own benefit without just and adequate compensation being paid. Terrell County v. York, 127 Ga. 166 (56 S. E. 309); Elbert County v. Brown, 16 Ga. App. 834 (86 S. E. 651); Rheberg v. Grady County, 27 Ga. App. 578 (109 S. E. 542); 15 C. J. 571, note 82.

3. A tort is a legal wrong committed upon the person or property, independent of contract; it may, however, arise from “the violation of some private obligation by which damage accrues to the individual.” Civil Code (1010), § 4403 (3). Thus, where the contractual relation of bailor and bailee exists between parties whereby a duty is imposed by law upon the bailee as being incident to and arising out of the contract of bailment, the complainant setting up a breach of the duty may elect as to his remedy and rely upon either his right under the contract or proceed for damages as in a case of tort. Fain v. Wilkerson, 22 Ga. App. 193 (2) (95 S. E. 752). A suit “should be treated as an action ex delicto, when it is manifest from the allegations and structure of the petition that the plaintiff is seeking a recovery because of the defendant’s breach of duty, and not on account of its breach of contract.” Rushin v. Central of Ga. Ry. Co., 128 Ga. 726 (3) (58 S. E. 357); Miller v. Ben H. Fletcher Co., 142 Ga. 668 (2) (83 S. E. 521). Accordingly, this suit must necessarily be treated as for a tort; and it must be so treated for the additional reason that the petition affirmatively shows that the contract of bailment alleged to have been made with the county was neither in writing nor recorded as required by statute in order to afford the basis of an action thereon. James v. Douglas Co., 131 Ga. 270 (62 S. E. 185). But even were it to be treated as based not on the tort, but on the failure of the defendant to exercise ordinary diligence with respect to the care of plaintiff’s property under the alleged contract of bailment, the county could not be held liable for the alleged negligent acts of its servants, unless the negligence amounted to damaging or appropriating the property for the benefit of the county. Since the alleged negligent injury to the car cannot be thus taken or construed, the verdict for the plaintiff was properly set aside.

Judgment affirmed.

Stephens and Bell, JJ., concur. R. Howard, Gordon, for plaintiff. Berry T. Moseley, for defendant.