City of Gainesville v. Moss ( 1963 )

Felton, Chief Judge,

dissenting in part. In my opinion Vickers v. City of Fitzgerald, 216 Ga. 476, supra, is contrary to the ruling in Scott v. Dudley, 214 Ga. 565, supra. If in a continuing-nuisance situation a new cause of action arises every day, a whole period of four years can not be considered “the event” upon which the injured party based his claim for damages. We are bound by the oldest decision of the Supreme Court, as that court is. Vickers is not an interpretation of Code Ann. § 69-308 and does not preclude us from following Scott. The damages sued for which accrued more than six months prior to the ante litem notice are not recoverable. I do not believe that the law would permit a party to fail to give a municipality an opportunity to abate a continuing nuisance (and pay for accrued damages), by keeping the nuisance a secret until the four-year statute had almost run. The ad litem notice is provided to prevent such a situation.

Judge Jordan joins me in this dissent.