Hackney v. Coweta County

Simmons, C. J.

The key that unlocks the bolt of controversy in this case is the distinction between a dependent liability and an independent liability. Prior to the act of 1888, the liability of the county was in every case dependent on the liability of the contractor, and on the further fact of neglect on the part of the county authorities to take from the contractor the requisite bond and security. This view is clearly presented in the dissenting opinion found in Davis v. Horne, 64 Ga. 70, and is the basis of all the holdings which limit the county’s liability to a period of seven years unless it be shown that the contractor stipulated to make repairs for a longer term than seven years. The proposition that a dependent liability does not arise where the liability on which it depends has not arisen, and at a time when the latter could not possibly arise, has the force of a self-evident truth. It can not be doubted that the intent of the code was that the bond and security exacted of a contractor should cover the whole time during which it was his duty to keep in repair a bridge built by him under contract with the proper county authorities. This-time could not be less than seven years, hut might be more in case of express stipulation. In either event, the bridge becoming out of repair or being out of repair after the time expired would be no concern of the contractor as such, and could not possibly subject him to responsibility for the consequences. He would then be related to the bridge just as he would if it had been built by the county itself. The same would be true of his sureties, if there were any, and of the county if no bond and security had been required.

The act of 1888- changed all this, so far as the county is concerned. It made it discretionary with the county authorities to exact bond and security, or not to do so, and in either event it declared that the county should be liable in every case “ for all injuries caused by reason of any defective bridges, whether erected by contractors or county authorities;” not only liable but primarily liable, meaning by this expression the reverse of dependently liable, changing the nature of the previous liability from dependent to independent or principal liability. It is plain, therefore, that the new liability set up is unlimited in time, for there is nothing to limit it by. As long as there was a principal liability restricted to a given time, and the liability of the county dependent on that, the latter was also necessarily restricted to the same time. But now there is certainly nothing which puts a time limit: as to bridges built-by the county since the" passage of the act of-1888; and as to bridges built by contractors there is nothing in. this respect to distinguish them from the others.

We are quite certain that the judgment below ought to be

Reversed.

'By five Justices.