City of Savannah v. Jordan

Decision Date19 September 1914
Docket Number570.
Citation83 S.E. 109,142 Ga. 409
CourtGeorgia Supreme Court

Syllabus by the Court.

The duty of keeping the streets of a municipality free from matter which, if allowed to remain, would affect the health of the public is a governmental function, the exercise of which would exempt the municipality from liability to a suit for damages to an employé without fault, who is injured by reason of a defective cart in which he is hauling "the sweepings of the streets" of such municipality, and which has been furnished him for that purpose by the agents of the municipality.

(a) This court will take judicial cognizance that the "sweepings of the streets" of a municipality contain matter which, if allowed to remain in the streets will injuriously affect the health of the citizens of such municipality.

(b) And this is so notwithstanding petition describes "the sweepings of the streets" as "dirt and trash."

The petition was subject to general demurrer, and should have been dismissed.

Error from Superior Court, Chatham County; W. G. Charlton, Judge.

Action by T. B. Jordan against the Mayor and Aldermen of the City of Savannah. Judgment for plaintiff, and defendants bring error. Reversed.

This action was brought against the city of Savannah by T. B Jordan, who was an employé of the city engaged at the time of the injury in driving a street cart. It was alleged that he was engaged in duties "under the street and lane department of the city," and that at the time of the injury he was "hauling the sweepings of the street." While driving the cart he noticed that the axle was not exactly straight, and, not being a mechanic, and knowing nothing about the durability of metals, he called the attention of Mr. Dolan, under whom he was working, to the condition of the axle, who told him to report the matter to the "inspector of carts and mules." The axle was worn, the point where it broke being thinner than the other part, and this made it too weak to stand the weight of the "dirt and trash" in the cart. The inspector who made an examination of the axle pronounced it safe, told the plaintiff to continue using it, and assured him that it would not break. At the point where it broke, it was cracked and too weak to stand the weight of the "dirt and trash in the cart," which was unknown to the plaintiff, but was known to the defendant, or could and should have been known if proper inspection had been made. On April 10, 1911 plaintiff was driving the cart on Farm street, which is a rock-paved street; and while on the cart in the discharge of his duties, the axle broke and he was violently thrown to the pavement. This severely injured his elbow and caused a rupture, from which hernia resulted, etc. He was entirely free from fault, did not consent or contribute to his injury and relied upon the assurance of safety given him. The axle was not manifestly dangerous. The injury was due directly and proximately to the negligence of the defendant, its servants and employés, in furnishing plaintiff an unsafe appliance with which to work, and in assuring him that the appliance was safe. A general and special demurrer to the petition were overruled, and the defendant excepted.

p>Page John Rourke, Jr., and D. S. Atkinson, both of Savannah, for plaintiff in error.

Twiggs & Gazan, of Savannah, for defendant in error.

HILL J. (after stating the facts as above).

Exception is taken to the overruling of the demurrer to the petition as amended. The amendment sufficiently met the special demurrer. Is the petition as amended sufficient to withstand a general demurrer? This depends on the answer to the question whether the act of hauling the sweepings from the streets of Savannah by the use of a cart, operated under the direction of the department of streets and lanes in that municipality, was the exercise of a governmental function, or was the exercise of a ministerial function. It seems to be well settled that where the municipality undertakes to perform for the state duties which the state itself might perform, but which have been delegated to the municipality--such for instance as devolve upon the board of health of a city under its charter, for the protection of life and health and comfort of the community--and in the exercise of such function under the department a private citizen is injured by the negligence of the servants of the department while engaged in such work, no cause of action arises against such municipality. Love v. Atlanta, 95 Ga. 129, 22 S.E. 29, 51 Am.St.Rep. 64; Cook v. Macon, 54 Ga. 468; Gray v. Griffin, 111 Ga. 361, 368, 36 S.E. 792, 51 L.R.A. 131; Mayor, etc., of Dalton v. Wilson, 118 Ga. 100, 101, 44 S.E. 830, 98 Am.St.Rep. 101; 4 Labatt on Master and Servant (2d Ed.) § 1615, p. 4928; 5 Thomp. Neg. § 5789. On the other hand, a municipality is civilly liable for damages arising "for neglect to perform, or for improper or unskillful performance of their duties" (Civil Code 1910, § 897, or for acts which are thus performed in its private character for business purposes, and for its own advantage or profit, although such act may inure to the ultimate benefit of the citizen. 5 Thomp. Neg. § 5789; 4 Labatt, M. & S. (2d Ed.) § 1615; Dill. Mun. Corp. (5th Ed.) § 1662, p. 2899. See Huey v. Atlanta, 8 Ga.App. 597, 70 S.E. 71; Mayor of Savannah v. Spears, 66 Ga. 304; Smith v. Atlanta, 75 Ga. 110; City of Greensboro v. McGibbony, 93 Ga. 672, 20 S.E. 37. There is a diversity of opinion in outside jurisdictions as to the liability of municipalities, while engaged in cleaning streets, for torts committed by its officers or agents. In some jurisdictions their duties are held to be governmental in their character, and the right to recover damages for torts thus committed is denied. See 4 Dill. Mun. Corp. 2899, and cases cited. In other jurisdictions municipalities have been held impliedly liable for the negligence of employés engaged in street cleaning. Id. Missano v. New York, 160 N.Y. 123, 54 N.E. 744; Quill v. New York, 36 A.D. 476, 55 N.Y.S. 889; Barney Dumping Boat Co. v. New York (C. C.) 40 F. 50. A clear distinction between the governmental and ministerial functions of a municipal corporation is drawn in the case of Jones v. Williamsburg, 97 Va. 722, 34 S.E. 883, 47 L.R.A. 294, where Riely, J., says:

"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

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