Hurley v. City of Atlanta

• Decision Date: 09 October 1951
• Docket Number: No. 17543,17543
• Citation: 208 Ga. 457,67 S.E.2d 571
• Parties: HURLEY v. CITY OF ATLANTA.
• Court: Georgia Supreme Court

Page 571

67 S.E.2d 571

208 Ga. 457

HURLEY v. CITY OF ATLANTA.

No. 17543.

Supreme Court of Georgia.

Oct. 9, 1951.

Rehearing Denied Nov. 16, 1951.

Syllabus by the Court.

The certiorari is adjudged to have been improvidently granted, and is therefore dismissed.

Kermit C. Bradford, E. B. Judge, Atlanta, for plaintiff in error.

J. C. Savage, J. C. Murphy, John E. Feagin, J. M. B. Bloodworth and Henry L. Bowden, Atlanta, for defendant in error.

CANDLER, Justice.

John L. Hurley sued the City of Atlanta for damages. Briefly and in substance, his petition alleged: He was arrested in Atlanta on November 12, 1949, and charged with being drunk. He was convicted in the police court of that offense and sentenced to pay a fine of $12 or be confined at the city's work camp for a period of 20 days. The fine of $12 was not paid, and he was transferred to the work camp. As such a convict, he was required to work upon the city's public streets. While so working, and solely because of the city's negligence, he was seriously and permanently injured on November 14, 1949. The trial judge overruled a general demurrer, whereby the city challenged the sufficiency of his petition to state a cause of action for the relief sought. The city excepted and sued out a writ of error to the Court of Appeals. That court reversed the trial court's judgment, with Judges Worrill and Townsend specially concurring and with Judge Felton dissenting. City of Atlanta v. Hurley, 83 Ga.App. 879, 65 S.E.2d 44. In so reversing the trial court's ruling, the Court of Appeals held that the defendant city was not liable in damages for an injury sustained by the plaintiff after he had been convicted of a penal offense in its police court and sentenced to work on its public streets, although his injury occurred while he was thus engaged in such work, and resulted solely from the city's negligence. Thus held the court, in effect, that keep and maintenance of the convict and the work he was required to perform upon its public streets was a governmental function, for the negligent performance of which the city was not liable to him in damages for a resulting injury. As authority for its majority ruling, the Court of Appeals cited and followed Nisbet v. City of Atlanta, 97 Ga. 650, 25 S.E. 173, where it was held and accordingly said by headnote: 'A municipal corporation is not liable in damages for the death of one convicted in a corporation court, and sentenced to work upon the public streets, although his death was occasioned while the convict was engaged in such work, and resulted from negligence on the part of the foreman who had been placed by the municipal authorities in charge thereof, and from the failure of such foreman to provide the convict, after his injury, with the proper medical attention and treatment.' As shown by the report thereof, the Nisbet case was brought in two counts. Count one alleged that the City of Atlanta was liable in damages...