City Of Atlanta v. Robertson, (No. 17171.)

• Decision Date: 29 October 1926
• Docket Number: (No. 17171.)
• Citation: 135 S.E. 445,36 Ga.App. 66
• Parties: CITY OF ATLANTA v. ROBERTSON.
• Court: Georgia Court of Appeals

36 Ga.App. 66

135 S.E. 445

CITY OF ATLANTA

v.ROBERTSON.

(No. 17171.)

Court of Appeals of Georgia, Division No. 2.

Oct. 29, 1926.

(Syllabus by the Court.)

(Additional Syllabus by Editorial Staff.)

Error from Superior Court, Fulton County; John D. Humphries, Judge.

Suit by P. Q. Robertson against the City of Atlanta. Judgment for plaintiff, and defendant brings error. Affirmed.

J. L. Mayson and C. S. Winn, both of Atlanta, for plaintiff in error.

Reuben R. & Lowry Arnold and E. C. Hill, all of Atlanta, for defendant in error.

BELL, J. [3] This case is before this court upon exceptions by the defendant municipality to the judgment of the superior court overruling the defendant's general demurrer to the plaintiff's petition. The suit was for damages for personal injuries, and contained, among others, the following allegations: While the plaintiff was riding in an automobile along James street in Atlanta, "the street and paving beneath said automobile suddenly, and without any warning, gave way, and said automobile plunged nose first into a hole in said street, between 15 and 20 feet deep, " with the result that the plaintiff was seriously hurt. Under the surface of James street, "at the point above described, " is a portion of the city's sewerage and water system. "The culverts supporting said sewerage system at the point above described had become worn, decayed, and disintegrated, and the same was insufficient in capacity and strength to care for the large volume of water and refuse required to pass this point, and the entire system at the point above described had been condemned some two or three years ago by the city authorities, although the same was still in use, with an increased demand thereon." "On account of the defective condition of said sewerage system at said point, and the increased demand thereon, the same had undermined the street at said point above described, washing away all the supporting dirt and structure, and left nothing but a mere shell bridging a cavity some 20 feet or more square, and approxi-mately 15 or 20 feet deep, and the surface of said street suddenly and without warning gave way under the weight of the automobile in which petitioner and his companions were riding, and the whole car fell into the said cavity, and was completely submerged therein." The defendant was negligent in failing to keep the sewerage system in a proper state of repair, and in failing to give warning to travelers of the defective condition which existed in the street "beneath the surface thereof, " and in keeping the street open to travel, when it was "decayed, worn and in a dangerous state of repair, " and when the same "had been condemned and the danger thereof was well known to defendant, its officers, agents, and employees."

The plaintiff gave notice to the city of his injuries and of his claim for damages as a result thereof, as required by section 910 of the Code, more than 30 days prior to the filing of the petition.

1. The main contention of the counsel for the plaintiff in error is that any default by the city with respect to the proper maintenance of the sewer was a failure to perform a governmental function; that the proximate cause of the plaintiff's injury was a defective sewer, and not a defective street; and that therefore the city is not liable.

In support of this contention counsel cite the case of City Council of Augusta v. Cleveland, 148 Ga. 734, 98 S. E. 345, from which it is insisted the case of City of Atlanta v. Trussell, 21 Ga. App. 340, 91 S. E. 649, should be distinguished. See, in this connection, Lewis v. City of Moultrie, 27 Ga. App. 757, 110 S. E. 625. In the brief of counsel for the plaintiff in error is the following statement and request:

"We are aware that this court has held in the case of Henning v. City of Atlanta (Ga. App.) 131 S. E. 921, to the contrary of the principles claimed in this brief. However, that case will be [carried by] certiorari to the Supreme Court, and pending the decision on the certiorari we ask that the decision in this case be held up."

The petition for certiorari in that case has since been denied; but we do not think it necessary in the present case to decide whether the city could be held liable for negligence relating solely to the maintenance of its sewerage system, since in our opinion the judgment of the superior court was clearly right regardless of this question. It seems appropriate that we forego any decision upon this question at this time, because it does not appear what ruling the superior court made thereon; the judge in his order saying:

"The basis of plaintiff's suit is not primarily upon alleged defects in the sewer main, but on account of an...