Huey v. City of Atlanta

• Citation: 70 S.E. 71,8 Ga.App. 597
• Decision Date: 24 January 1911
• Docket Number: 2,784.
• Parties: HUEY et al. v. CITY OF ATLANTA.
• Court: United States Court of Appeals (Georgia)

70 S.E. 71

8 Ga.App. 597

HUEY et al. v. CITY OF ATLANTA.

No. 2,784.

Court of Appeals of Georgia

January 24, 1911

Syllabus by the Court.

The operation of a system of waterworks is not such a governmental function as that a city is not liable for injuries resulting through negligence in the maintenance thereof. While this business is quasi public, it is not essentially governmental.

Where the proprietor or possessor of land, houses, structures, or other like things employs an independent contractor to do work thereon, but does not surrender the custody of the premises, or of the structure or other thing, as the case may be, to the independent contractor, and a servant of the independent contractor, coming and attempting to do the designated work in a manner reasonably to be anticipated, is injured by some latent danger in the conditions surrounding the premises, structure, or other thing, of which the proprietor has actual or constructive knowledge, and of which the workman has no knowledge, actual or constructive, the failure of the proprietor of the premises to warn him of the danger or to inform him of the conditions is a wrong, and such a breach of duty as will give rise to a cause of action in favor of the injured workman against the proprietor for the injury inflicted.

If the proprietor of premises on which machinery is located employs an independent contractor to repair a particular machine, and the proprietor knows, or by the exercise of ordinary care should know, not only that the machine is out of repair, but that there is some extraordinary latent danger or perilous condition attaching upon the service, and the independent contractor sends a servant to make the repairs (the servant being actually or constructively ignorant of the extraordinary danger), it is the duty of the proprietor of the premises to warn the servant thereof; and for a breach of this duty, resulting in injury to the servant, the latter has a cause of action against the proprietor of the premises.

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

Action by R. H. Huey and others, by their next friend, against the City of Atlanta. Judgment for defendant, and plaintiffs bring error. Reversed.

J. D Kilpatrick, for plaintiffs in error.

J. L Mayson and W. D. Ellis, Jr., for defendant in error.

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

The first contention of the defendant is that, being a city, it is not liable for damages ensuing through the negligence of its employés in the operation of its system of waterworks. Of course, it is well recognized that, so far as its purely governmental functions are concerned--that is, so far as it undertakes to perform for the state any of those duties which the state should perform, either directly or indirectly, for its citizenry, such as the maintenance of the public morality, peace, safety, and health--a city has the same immunity from liability that the state itself possesses. On the other hand, as to their other corporate functions, cities are liable just as other corporations are for negligence. Able counsel for the city do not cite a Georgia case in support of their contention that the city is not liable for damages resulting from negligence committed in connection with the maintenance of their system of waterworks, and, as the practically unbroken current of American authority is that municipalities are liable for such injuries, we see no reason for making an exception in this state. Even as to the maintenance of streets and highways, which approaches much closer to a governmental function than does the maintenance of waterworks, they are liable for negligence. Dillon on Municipal Corporations (4th Ed.) § 985, states the rule that "municipal corporations are liable for the improper management and use of their property to the same extent and in the same manner as private corporations and natural persons," and, among other cases, cites Brown v Atlanta, 66 Ga. 71, a case involving the liability of the city of Atlanta for a tort committed by its employés in the operation of its waterworks. See, also, Augusta v. Mackey, 113 Ga. 64, 38 S.E. 339. The line of demarcation between the liability and the nonliability of a municipal corporation for negligence in connection with its system of waterworks is to be seen in the annotations to the case of City of Winona v. Botzet, as reported in 23 L.R.A. (N. S.) 204.

2. We are led to believe, however, that the learned trial judge did not base his ruling upon the ground of the city's not being liable because of any special exemption arising out of governmental function, but that he took the view that Huey, being a servant of the Withers Foundry & Machine Works, must look to his employer and not to the city for indemnity. In support of this view, counsel for the city cite the section of the Code (Civ. Code 1895, § 3818) and a long line of decisions which declare that the proprietor of the premises generally is not responsible for torts committed by a contractor doing work for him, where the contractor exercises an independent business which is not subject to the direction and control of the proprietor, and contend that since the Withers Foundry & Machine Works was an independent contractor, and Huey was an employé of the contractor, the city is not liable in this transaction. This case, if we understand it, does not fall within the doctrine announced in the section of the Code just referred to and the cases cited. That Code section and those decisions relate to cases where there has been a breach of duty toward the servant by the independent contractor as master; in other words, where the action is predicated of some negligence of the independent contractor.

They are not applicable to cases such as this, involving the distinct and independent negligence of the owner or proprietor of the premises. In sum and substance, the Code sections and the decisions referred to declare that an independent contractor is not usually such an agent of the person employing him as to make the latter responsible for the torts of the former. It is their object to declare a limitation upon the application of the doctrine of respondeat superior, and not to exempt any one from responsibility for his own personal negligence. They leave the rule of liability in cases where the proprietor and an independent contractor both figure in the transaction, such as that each party is responsible for his own neglects and wrongs, and not for those of the other. The question in each case is: Whose negligence is involved? Who has violated the particular duty? In those cases where the cause of action is predicated of a breach of one of those duties imposed upon the master by reason of the contract of employment, the independent contractor, being the master, is the one to whom the injured person must look for damages. Unless the case falls within one of the exceptions stated in the Code section, the person employing the independent contractor is not responsible for injuries resulting to the latter's servant.

Then there is a class of cases (and we consider this case as being within that class) where the proprietor of the premises is by reason of wrongs...