Harrison Co. v. City of Atlanta

• Decision Date: 14 April 1921
• Docket Number: 11698.
• Citation: 107 S.E. 83,26 Ga.App. 727
• Parties: HARRISON CO. v. CITY OF ATLANTA.
• Court: Georgia Court of Appeals

107 S.E. 83

26 Ga.App. 727

HARRISON CO. v. CITY OF ATLANTA.

No. 11698.

Court of Appeals of Georgia, First Division

April 14, 1921

Syllabus by the Court.

"The duties of municipal authorities in adopting a general plan of drainage, and in determining when, where, and of what size and at what level drains or sewers shall be built, are of a quasi judicial nature, involving the exercise of deliberate judgment and wide discretion; and the municipality is not liable for an error of judgment on the part of the authorities in locating or planning such improvements."

Additional Syllabus by Editorial Staff.

A notice to a city of damages from water overflowing into plaintiff's basement, stating that the overflow was caused by the fact that the eye of a sewer was too small to carry away the water, and that the city officials' attention had been called to the inadequate condition of the sewer, stated no negligence, except the insufficient size of the sewer eye.

Under Civ. Code 1910, § 910, providing that no person having a claim for damages against any municipal corporation shall bring any suit without first presenting a claim stating the time, place, and extent of the injury as near as practicable and the negligence which caused it, the petition must be based on the specific negligence alleged in the notice.

In an action for damages from water flowing into plaintiff's basement, the petition, when construed most strongly against the pleader and in connection with the notice to the city of the damage, held to allege no negligence, except the small size of the eye or inlet of a sewer.

Error from City Court of Atlanta; H. M. Reid, Judge.

Action by the Harrison Company against the City of Atlanta. The petition was dismissed on demurrer, and plaintiff brings error. Affirmed.

Luke J., dissenting.

B. H. & Harvey Hill, of Atlanta, for plaintiff in error.

J. L Mayson and J. M. Wood, both of Atlanta, for defendant in error.

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

The petition in this case is based upon a notice given by the plaintiff to the city of Atlanta, as required by section 910 of the Civil Code of 1910. This notice, after relating the fact that at a certain time and during a very hard rain "its place of business was overflowed and the water ran in the basement of [its] building," and damaged the goods stored therein, alleged that--

"The overflow was caused by the fact that the sewer eye was entirely too small to carry away the water, and the overflow ran into the basement." It was also stated in the notice that on several occasions the attention of the city officials was called "to the inadequate condition of the sewer in question in the event of a hard rain." (Italics ours.) It is clear that the only negligence stated in this notice is "the fact that the sewer eye was entirely too small." This is the foundation upon which the petition is constructed.

The words "inadequate condition," in the connection in which they are used, can mean nothing more than that the sewer eye was insufficient in size for the specific purpose for which it was built. This notice makes no reference to any "defective construction" of the sewer eye, and the petition must be based upon the specific negligence alleged in the notice. When the notice states a ground of negligence the petition must be bottomed upon that particular ground of negligence, and this cannot be changed by allegations in the petition. For the notice to state one ground of negligence and the petition another would be to allow a person to bring a suit against a municipality without complying with section 910 supra, and would require the municipality to defend a suit it had been given no chance to settle. This would defeat the end sought to be attained by the passage of the act embraced in that section of the Code. We are not unmindful that in Langley v. Augusta, 118 Ga. 600, 45 S.E. 490, 98 Am.St.Rep. 133, the Supreme Court said:

"The act of December 20, 1899, requires that all persons having claims against municipal corporations, for injuries to person or property, to present 'in writing such claims to the governing authority of said municipality for adjustment, stating the time, place, and extent of such injury, as near as practicable, and the negligence which caused the same,' before bringing suit against the corporation. Acts 1899, p. 74. This act does not contemplate that the notice shall be drawn with all the technical niceties necessary in framing a declaration. The purpose of the law was simply to give to the municipality notice that the citizen or property owner has a grievance against it. It is necessary only that the city shall be put on notice of the general character of the complaint, and, in a general way, of the time, place, and extent of the injury. The act recognizes, by the use of the words 'as near as practicable,' that absolute exactness need not be had. A substantial compliance with the act is all that is required; and when the notice describes the time, place, and extent of the injury with reasonable certainty, it will be sufficient. See, in this connection, Laue v. Madison (Wis.) 57 N.W. 93; Barrett v. Hammond (Wis.) 58 N.W. 1053; City of Denver v. Barron (Colo.) 39 P. 989; McCabe v. Cambridge, 134 Mass. 484; Cloughessey v. Waterbury, 51 Conn. 405. The petition need not exactly follow the notice, and an immaterial variance between the two as to time, place, or extent of injury will not amount to a fatal variance."

But the discussion in that case has no reference to negligence. The words in the act, "as near as practicable," follow and qualify the words "time, place, and extent of such injury," but they precede and do not qualify the words "the negligence which caused the same." If the Legislature had intended that a substantial compliance as to the negligence to be stated in the notice was sufficient, would not the clause in the statute, "as near as practicable," have preceded the words "negligence which caused the same."

As we construe the petition, it does not broaden or change the allegations of negligence from that stated in the notice, and the only negligence alleged in the petition as the cause of the damage to plaintiff's property is the same as that stated in the notice, to wit, the small size of the sewer eye. Paragraph 6 of the petition is as follows:

"Petitioner says that the cause of said water running down into its said basement was due to the fact that the manhole or eye into said sewer from the street was entirely too small to carry off the flood of water into the sewer; it being too small permitted the water to run through and over the sidewalk and into the basement of petitioner's place of business, and the eye to the sewer was entirely too small to carry off into the sewer, as contemplated and as necessary to prevent the flooding of petitioner's basement."

The petition was amended in part as follows:

"Petitioner says that the direct effect of the construction of the sewer eye and drain complained of is to collect a large body of water at every hard rain, and to precipitate the water thus collected across the sidewalk and through the grating leading down into the basement of petitioner's property; that this result is caused by wholly insufficient sewer eye or inlet into the sewer from the surface, by negligent construction of said sewer eye and drainage, and this condition of the sewer eye has frequently been called to the attention of the defendant, and demand made that the defective condition be remedied by the city, but without effect."

If the sewer eye was too small, this was not the result of "negligent construction," but was an error in the plan involving the exercise of judgment and discretion, for which the municipality would not be liable. Even in the petition as amended there is no act of negligence which is alleged to have caused the water to overflow into the basement of the building and damage petitioner, other than that the "sewer eye was entirely too small." According to the petition as amended, the small size of the sewer eye was the sine qua non of the damage. The petition, construed in connection with the notice and as a whole, and most strongly against the pleader, as it must be, shows that it is the small size of the sewer eye, and not any "negligent construction" thereof, that caused the damage.

Let it be borne in mind that this petition is not one for negligently failing to keep a sewer in repair, nor for negligently allowing a sewer to become obstructed, but is one for constructing a sewer with two small an eye. But, were it otherwise, the Supreme Court in City Council of Augusta v. Cleveland, 148 Ga. 734, 98 S.E. 345, held that "the duty of a city to maintain its sewerage-drainage system in a good working and sanitary condition is a governmental function." In the opinion in that case the Supreme Court said at page 736 of 148 Ga., at page 346 of 98 S. E.:

"This conclusion is in accordance with what was said in the case of Love v. Atlanta, 95 Ga. 129, 22 S.E. 29 (51 Am.St.Rep. 64), and the other cases decided by this court. Watson v. Atlanta, 136 Ga. 370, 71 S.E. 664. See, also, 6 McQuillin, Mun. Corp. § 2669."

The principle announced in the Love Case has been referred to with approval in a number of cases, among them Nisbet v City of Atlanta, 97 Ga. 650, 653, 25 S.E. 173; Ison v. Mayor and Council of Griffin, 98 Ga. 623, 626, 25 S.E. 611; Wyatt v. City of Rome, 105 Ga. 312, 31 S.E. 188, 42 L.R.A. 180, 70 Am.St.Rep. 41; Gray v. Mayor and Council of Griffin, 111 Ga. 363, 36 S.E. 792, 51 L.R.A. 131; City of Dalton v. Wilson, 118 Ga. 101, 44 S.E. 830, 98 Am.St.Rep. 101; City of Savannah v. Jordan, 142 Ga. 412, 83 S.E. 109, L.R.A. 1915C, 741, Ann.Cas. 1916C, 240; Rogers v. City of Atlanta, 143...