Brannan v. City of Brunswick

• Decision Date: 04 April 1934
• Docket Number: 23400.
• Citation: 174 S.E. 186,49 Ga.App. 62
• Parties: BRANNAN v. CITY OF BRUNSWICK.
• Court: Georgia Court of Appeals

174 S.E. 186

49 Ga.App. 62

BRANNAN v. CITY OF BRUNSWICK.

No. 23400.

Court of Appeals of Georgia, First Division

April 4, 1934

Syllabus by the Court.

A police officer hired by a municipal corporation to patrol a toll bridge, which is operated for pecuniary gain and benefit of the corporation, where the bridge is by the charter of the municipality made a city street for the purpose of giving the city police jurisdiction over the same, cannot recover from the municipality for injuries alleged to have been sustained by him while patrolling the bridge, because of a defective motorcycle furnished to him. The character of the act done by the municipality is determined by the act being performed by the injured employee at the time of the injury, which in this case is a governmental function; and therefore anything done in connection therewith by the city, such as repairing the vehicles furnished such employee, is a governmental function. The court did not err in sustaining the general demurrer and dismissing the petition.

Error from City Court of Brunswick; E. C. Butts, Judge.

Suit by L. C. Brannan against the City of Brunswick. To review a judgment sustaining a general demurrer to, and dismissing the petition, plaintiff brings error.

Affirmed.

Farr & Mitchell, of Brunswick, and Youngblood & Youngblood, of Waycross, for plaintiff in error.

R. D Meader, of Brunswick, for defendant in error.

GUERRY Judge.

L. C Brannan brought suit against the city of Brunswick and the county of Glynn for personal injuries alleged to have been sustained by him through their negligence, by reason of which he claims damages. His petition was amended, striking therefrom all reference to the county of Glynn and proceeding against the city of Brunswick as sole defendant. A general demurrer was sustained and his petition dismissed; to which ruling he excepted. His petition makes out substantially the following case: Petitioner on February 24, 1931, and for some time prior thereto, was a policeman for the city of Brunswick, "whose duties it was, among others (italics ours), to patrol by use of a motorcycle * * * the public highway or causeway from Brunswick, Georgia, to St. Simons Island, Georgia." He was employed in the above capacity by J. E. Register, chief of police of the city of Brunswick, whose commands and instructions he was to obey. The St. Simons Island causeway "is owned and operated by the defendant as a toll road, for the use of which tolls or fees are charged and collected by the defendant for its own corporate purposes and as a source of corporate revenue and profit." (Italics ours.) Petitioner, on the date of February 24, 1931, was engaged in the duty of patrolling the St. Simons Island causeway, on a motorcycle furnished to him by the defendant for that purpose, and, while performing such duty, was thrown from his motorcycle and received certain described injuries. The cause of his injury was the defective condition of the motorcycle, in that the chain on said motorcycle was loose and in a defective condition. J. E. Register, as the alter ego representative of the defendant, owed him the duties of furnishing to him a reasonably safe place to work, that is, a motorcycle that was reasonably suited for the purpose intended; of ascertaining the defective condition of such appliance and to give him warning thereof, which duties he breached. The petition further alleges that such defect was known or could have been known by the defendant by the use of ordinary care and diligence.

Do the facts as set out above constitute a good and valid cause of action against the defendant? We have given what we think a most careful perusal and consideration to many cases and many text-books on the subject to be discussed in rendering an opinion in this case, in an effort to ascertain some clear and definite rule in regard thereto. Undoubtedly, in the present case, if the relation purely of master and servant existed between the plaintiff and the defendant at the time of the injury sustained, the petition sets out a good cause of action, for the petition alleges that the defendant employed him, that it had the right to direct his movements and to discharge him. It alleges further that the defendant failed to furnish him safe appliance with which to work. It sets out facts to show reasons why the plaintiff did not know of the facts complained of and in the exercise of ordinary care could not have known of these defects and did not have equal means with the master in knowing of such defects, and further alleges that such failure on the part of the defendant was the proximate cause of his injuries. See Civil Code (1910), § 3130. However, the defendant being a municipal corporation, to which different rules apply than to private corporations in some instances, it becomes pertinent to inquire for what acts of negligence it is liable. Section 897 of the Civil Code of (1910) reads as follows: "Municipal corporations are not liable for failure to perform, or for errors in performing, their legislative or judicial powers. For neglect to perform, or for improper or unskillful performance of their ministerial duties, they are liable." In discussing the construction of this statute, Atkinson, J., in Cornelisen v. City of Atlanta, 146 Ga. 416, 91 S.E. 415, 416, said: "The whole section should be construed together in connection with its cognate sections, and as intending to declare that municipal liability should attach only for neglect to perform, or for improper or unskillful performance of, 'ministerial duties.' This construction would leave intact the common-law doctrine, frequently applied in this state before and since adoption of the Code, of nonliability for conduct of officers, agents, and servants of municipal corporations in respect to duties devolving upon them in virtue of the sovereign or governmental functions of the municipality." In Love v. City of Atlanta, 95 Ga. 129, 22 S.E. 29, 51 Am.St.Rep. 64, it was said, in discussing for what negligent acts a municipal corporation is liable: "Distinctions do not appear to have been at all times accurately drawn between the classes of cases in which a municipal corporation would be liable and those in which it would not be liable for the misfeasance or nonfeasance of a public servant employed under municipal authority in the discharge of duties relating to corporate affairs. One general proposition, however, seems to have received general recognition at the hands of courts of last resort wherever that class of cases has been considered, and that class of cases is that, where an injury sustained is inflicted because of the misfeasance of an agent of a corporation while engaged in a duty pertinent to the exercise of what are termed 'governmental functions of a corporation,' the city is not liable. Where injuries under similar circumstances are inflicted by the agent of a corporation acting for it in the discharge of a duty on behalf of a municipal corporation where it is engaged in the exercise of some private franchise, or some franchise conferred upon it by law which it may exercise for the private profit or convenience of the corporation or for the convenience of its citizens alone, in which the general public has no interest, for such injuries a right of recovery lies against the city." The court further said: "Some difficulty has arisen in the application of these general principles to the facts of particular cases which from time to time have arisen. Some difficulty has risen in the proper classification of cases in order to assign each to its appropriate position with reference to the liability or nonliability of a corporation, and the courts have not been altogether happy nor entirely consistent at all times in this regard."

In Mayor, etc., of City of Savannah v. Jones, 149 Ga. 140 99 S.E. 294, it was said: "A municipal corporation in the exercise of its corporate functions performs two classes of service: (1) Governmental duties; and (2) private, corporate, or ministerial, duties. It seems well settled in this state that in the negligent performance of its governmental duties a municipal corporation is not liable in damages to one who is injured while the municipality is engaged in the performance of such duties. Wright v. Augusta, 78 Ga. 241, 6 Am.St.Rep. 256; Love v. Atlanta [supra], 95 Ga. 129, 22 S.E. 29, 51 Am.St.Rep. 64; Watson v. Atlanta, 136 Ga. 370, 71 S.E. 664; Mayor &c. of Savannah v. Jordan, 142 Ga. 409, 83 S.E. 109, L.R.A. 1915C, 741, note, Ann.Cas. 1916C, 240; Cornelisen v. Atlanta [supra], 146 Ga. 416, 91 S.E. 415. * * * But a different rule obtains where in the exercise or neglect of its ministerial duties one is negligently injured by a municipal corporation." In Jones v. City of Williamsburg, 97 Va. 722, 34 S.E. 883, 47 L.R.A. 294, which is quoted with approval in City of Dalton v. Wilson, 118 Ga. 100, 44 S.E. 830, 98 Am.St.Rep. 101, it was said: "A municipal corporation has a dual character, the one public and the other private, and exercises correspondingly twofold functions, the one governmental and legislative, and the other private and ministerial. In its public character, it acts as an agency of the state, to enable it the better to govern that portion of its people residing within the municipality, and to this end there is granted to or imposed upon it by the charter of its creation powers and duties to be exercised and performed exclusively for public governmental purposes. These powers are legislative and discretionary, and the municipality is exempt from liability for an injury resulting from the failure to exercise them, or from their improper or negligent exercise. In its corporate and private character there are granted unto it privileges and powers to be exercised for...