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Mappin v. The County of Washington
Simmons, Justice. 1. Before the passage of the act of 1888 (Acts of 1888, p. 39) counties were not primarily liable for injuries received from defects in bridges, where they had taken bond as required bylaw from the contractor who constructed the bridge.
It appearing from the record that the county bridge in question was erected under a contract of letting to the lowest bidder on May 12th, 1888, the act above mentioned making counties primarily liable did not apply to this case, that act not having been approved until the 29th of December, 1888. It was expressly held by this court in Bibb County v. Dorsey, 90 Ga. 72, 15 S. E. Rep. 647, that this act did not apply to bridges which had been let out and built before the passage thereof. 2.
The code makes it the legal duty of county authorities, when they let out a bridge to be built by the lowest bidder, to take from the contractor a bond and good security to keep the bridge in good repair for at least seven years. The bond taken in this case was for the term of only three years. Why the county authorities did not make the term seven years, as required by section 671 of the code, is unexplained by the record.
The injury to the plaintiff occurred before the expira 132 tion of the bond given, and therefore the contractor, and not the county, was primarily liable to the plaintiff. If the injury had been received after the expiration of the three years for which the bond was given, it is quite likely the county would have been liable, as in that event the county should be treated as having taken no bond at all. Code, §691.
But inasmuch as the county took a bond for the term of three years, during which time the injury occurred, the bond taken may be taken as a “ sufficient guarantee ” contemplated by the code, so as to exempt the county from liability for damages sustained during that period by one injured in consequence of the defective condition or want of repair of the bridge.
The bond being such as is contemplated by section 670 of the code, and failing to conform to section 671 only as to the length of time for keeping the bridge in good repair, and being a sufficient protection to persons injured prior to its expiration, the plaintiff should have sued the contractor, and not the county. Judgment affirmed.