Brown v. City of Union Point

• Decision Date: 09 December 1935
• Docket Number: 24777.
• Citation: 183 S.E. 78,52 Ga.App. 212
• Parties: BROWN v. CITY OF UNION POINT.
• Court: Georgia Court of Appeals

183 S.E. 78

52 Ga.App. 212

BROWN v. CITY OF UNION POINT.

No. 24777.

Court of Appeals of Georgia, Second Division

December 9, 1935

Syllabus by the Court.

1. "A municipal corporation shall not be liable for the torts of policemen or other officers engaged in the discharge of the duties imposed on them by law." Code 1933, § 69-307; Harris v. City of Atlanta, 62 Ga. 290 (1); McElroy v. City Council of Albany, 65 Ga. 387, 38 Am.Rep. 791. For acts done in the illegal performance of purely governmental functions, that is to say, for failure to perform or errors in performing its legislative or judicial powers, as distinguished from neglect to perform or improper or unskillful performance of its ministerial duties, however illegally the authority may be exercised, the municipality is not liable. Code, § 69-301; Rivers v. City Council of Augusta, 65 Ga. 376 (1), 378, 38 Am.Rep. 787, and citations; Cornelisen v. City of Atlanta, 146 Ga 416, 417, 91 S.E. 415. Nor can a municipality ratify the unlawful acts of its subordinate officials done in pursuance of its governmental functions, so as thereby to make itself liable for such acts. Davis v. City of Rome, 23 Ga.App. 188 (3), 98 S.E. 231; 6 McQuillin on Munic Corporations (2d Ed.) § 2591, pp. 405-409.

2. "A municipal corporation is not liable for the illegal arrest of a person by its police officers, nor for his consequent imprisonment. Nor is a city liable in damages because its mayor required of a person charged with a violation of a city ordinance a larger bond for his appearance than the law authorized, even if the failure of such person to give bond and his consequent confinement were occasioned thereby." Such acts by a police officer and a mayor fall within the scope of the governmental functions of the municipality and the discharge of governmental duties thereunder, and the municipality by the plain language of the statute is relieved of liability. Gray v. City of Griffin, 111 Ga. 361 (1, 2), 363-368, 36 S.E. 792, 51 L.R.A. 131, and citations. A like rule applies where, as in the instant case, a mayor, as judge of a city's court for the trial of ordinance violations, is alleged to have wrongfully refused to allow bail to an alleged offender, and to have wrongfully directed a police officer to commit him to jail, and the alleged offender was imprisoned until released by a habeas corpus proceeding. 4 Dillon on Munic Corporations (5th Ed.) § 1656, pp. 2883-2887; Pesterfield v. Vickers, 3 Cold. (Tenn.) 205; Ready v. Mayor etc., of City of Tuskaloosa, 6 Ala. 327; Bowditch v Boston, 101 U.S. 16, 25 L.Ed. 980. Nor will the appearance of the mayor or an attorney for the municipality in resistance of the habeas corpus constitute a ratification by the municipality of these alleged illegal acts by its officers, so as to render it liable therefor. See 6 McQuillin on Munic. Corporations (2d Ed.) § 2628, p. 855.

3. The allegation that the alleged illegal governmental acts by a city mayor and a police officer under his direction in arresting and falsely imprisoning the plaintiff were done not only negligently, but "corruptly, maliciously, arbitrarily, and oppressively," in disallowing bail or a trial, irrespective of any question as to the personal liability of the officers under such averments, would not render the city itself liable; since, even if the alleged acts were committed with authority from the city, the city would not be liable because of its exercise of governmental functions, and if the acts were done without any express or implied authority from the city, the rule of respondeat superior would not apply to render the city responsible. See Cook v. Mayor, etc., of Macon, 54 Ga. 468, 469; Pounds v. Central of Georgia R. Co., 142 Ga. 415, 416, 83 S.E. 96; 4 Dillon on Munic. Corporations (5th Ed.) § 1656, p. 2884. In Attaway v. Mayor, etc., of Cartersville, 68 Ga. 740, 741, the illegal arrest and imprisonment by the city marshal and policeman were alleged to have been "" wanton, inhuman, and brutal," but the city, on demurrer to the petition, was held not liable. In Moss v. City Council of Augusta, 93 Ga. 797, 20 S.E. 653, notwithstanding a " wanton and malicious" killing of a dog by a police officer, under a city ordinance, it was held that the owner could not recover from the city. In Gray v. City of Griffin, supra, the exercise by the city of a governmental function in maintaining a city prison, where the plaintiff was confined, was held to absolve it from liability, even though it was charged that, in keeping it in a condition unsuitable for human beings, the city was ""grossly and criminally negligent."

4. Under the preceding rulings, the court did not err in dismissing the petition on general demurrer.

Error from Superior Court, Greene County; James B. Park, Judge.

Petition by J. B. Brown against the City of Union Point. To review a judgment dismissing the petition on general demurrer plaintiff...