Foster v. Crowder

• Decision Date: 02 April 1968
• Docket Number: No. 43329,No. 1,43329,1
• Citation: 161 S.E.2d 364,117 Ga.App. 568
• Parties: H. M. FOSTER v. J. L. CROWDER et al
• Court: Georgia Court of Appeals

Page 364

161 S.E.2d 364

117 Ga.App. 568

H. M. FOSTER v. J. L. CROWDER et al.

No. 43329.

Court of Appeals of Georgia, Division No. 1.

April 2, 1968.

Syllabus by the Court

1. Because of its governmental immunity a city is not liable in damages to one who is injured by the negligent operation of a motor vehicle used in transporting materials for the installation of a grating to permit water to enter its drainage system.

2. However, the governmental immunity does not extend to the city employee who negligently operated the vehicle and inflicted the injury.

Henry M. Foster brought suit against the City of Atlanta and its employee, Joe L. Crowder, alleging that he had sustained injuries when Crowder drove a pickup truck belonging to the city and struck him while he was walking across a street at an intersection, he having the right of way by virtue of the traffic control signal light. By amendment he alleged that at the time the truck was being used in hauling materials for use in the installation and construction of a grating in the street-a part of the drainage system.

On September 14, 1967, defendants moved to 'dismiss the complaint because the same fails to state a claim upon which relief can be granted.' The motion was sustained on behalf of both defendants, and plaintiff appeals.

Carnes, Dillon & White, Tom Dillon, Atlanta, for appellant.

Henry L. Bowden, Thomas F. Choyce, Atlanta, for appellee.

EBERHARDT, Judge.

1. The construction, installation and maintenance of a sewer-drainage system (including that for surface water) is a governmental function of the city. City Council of Augusta v. Cleveland, 148 Ga. 734, 98 S.E. 345; Bass Canning Co. v. MacDougald Construction Co., 174 Ga. 222, 162 S.E. 687; City Council of Augusta v. Williams, 206 Ga. 558, 57 S.E.2d 593; Barr v. City Council of Augusta, 206 Ga. 750, 58 S.E.2d 820; Harrison Company v. City of Atlanta, 26 Ga.App. 727, 107 S.E. 83; Lewis v. City of Moultrie, 27 Ga.App. 757, 110 S.E. 625; City of Atlanta v. Robertson, 36 Ga.App. 66, 135 S.E. 445; City of Atlanta v. Key, 42 Ga.App. 214, 155 S.E. 499; Neese v. City of Atlanta, 45 Ga.App. 376, 165 S.E. 165; Rogers v. City of Atlanta, 61 Ga.App. 444, 6 S.E.2d 144; Foster v. Mayor, etc. of Savannah, 77 Ga.App. 346, 48 S.E.2d 686; City Council of Augusta v. Williams, 81 Ga.App. 132, 58 S.E.2d 208; City of Douglas v. Cartrett, 109 Ga.App. 683, 137 S.E.2d 358. '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.' ¹ Mayor, etc. of City of Savannah v. Jones, 149 Ga. 139, 99 S.E. 294. And see Love v. City of Atlanta, 95 Ga. 129, 22 S.E. 29; Nisbet v. City of Atlanta, 97 Ga. 650, 25 S.E. 173; Roberts v. Mayor etc. of City of Savannah, 54 Ga.App. 375, 188 S.E. 39; Code § 69-301. This governmental immunity from liability extends to the use of motor vehicles in connection with the performance or accomplishment of the governmental function. Watson v. City of Atlanta, 136 Ga. 370, 71 S.E. 664; McCrary v. City of Rome, 29 Ga.App. 384, 115 S.E. 283; Maddox v. City of Atlanta, 47 Ga.App. 791, 171 S.E. 573; City of Brunswick v. Volpian, 67 Ga.App. 654, 21 S.E.2d 442, and compare Love v. City of Atlanta, 95 Ga. 129, 22 S.E. 29, 51 Am.St.Rep. 64. See McQuillin, The Law of Municipal Corporations (3d Ed.) vol. 18, p. 239, § 53.45.

As to the City of Atlanta the dismissal of the action was proper.

2. It does not follow, however, that the servant or employee who committed the negligent act resulting in injury enjoys the governmental immunity of his employer. '(A)n employee ² who commits a wrongful or tortious act violates a duty he owes to the one who is injured and is personally liable, even though his municipal employer may be exempt from liability under the doctrine of governmental immunity.' McQuillin, The Law of Municipal Corporations, (3d Ed.), Vol. 4, p. 154, and p. 59 of 1967 Supp. § 12.211; Maddox v. City of Atlanta, 47 Ga.App. 791, 171 S.E. 573; Thomas v. Williams, 105 Ga.App. 321, 124 S.E.2d 409; Poole v. City of Louisville, 107 Ga.App. 305, 130 S.E.2d 157. Cf. Trice v. Wilson, 113 Ga.App. 715(2), 149 S.E.2d 530. As to the defendant Crowder, the petition does state a claim upon which relief can be granted and it was error to dismiss as to him.

Judgment affirmed in part; reversed in part.

FELTON, C.J., and WHITMAN, J., concur.

1 There have been many calls for some provision whereby a citizen injured by the negligent acts of his...