Love v. City Of Atlanta

• Decision Date: 04 December 1894
• Parties: LOVE. v. CITY OF ATLANTA.
• Court: Georgia Supreme Court

22 S.E. 29

95 Ga. 129

LOVE.

v.CITY OF ATLANTA.

Supreme Court of Georgia.

Dec. 4, 1894.

Liability of City fob Failure of Duty by Board of Health.

The duty of keeping the streets clear of putrid and other substance offensive to the sense of smell, and which tends to imperil the public health, devolves, under the charter of the city of Atlanta, upon the board of health of that city; and, the functions of this department of the city government being governmental, and not purely administrative, in their character, it follows that if, in the exercise of such functions, and in the discharge of the duties devolving upon this department thereunder, a private citizen is injured y the negligence of one of its servants in and about such work, no right of action arises against the city. (Syllabus by the Court.)

Error from city court of Atlanta; Howard Van Epps, Judge.

Action by W. A. Love against the city of Atlanta. Defendant had judgment, and plaintiff brings error. Affirmed.

Dorsey, Brewster & Howell, for plaintiff in error.

J. A. Anderson and Fulton Colville, for defendant in error.

ATKINSON, J. Love brought against the city of Atlanta an action for damages, alleging, in substance, that while he was passing along the streets of the city, in the exercise of proper care, without fault upon his part, by, through, and because of the negligence of a servant of the defendant, an animal attached to one of the garbage carts of the city was permitted to run away, and while so running collided with the buggy of the plaintiff, causing serious injury. It was also alleged that the driver of the cart was a small negro boy, wholly incompetent to the discharge of the duty, and that the mule employed was vicious, dangerous, and liable to run away. The evidence proved the plaintiff's cause of action as laid in the declaration, and in reply it was shown that the mule and cart causing the damage were in use by the city under the direction of the health board of the city, and that the servant of the city charged with driving said cart was then employed in cleaning the streets, and removing therefrom such putrid and offensive substances as usually accumulate in the streets of densely populated cities, and which were necessary to be removed, because, remaining, they endangered the public health. At the conclusion of the evidence the trial judge directed a verdict for the defendant, instructing the jury that, inasmuch as the uncontroverted testimony showed that the injury complained of was

inflicted by servants of the city employed by that department of the city government whose duty it was to look after and preserve the public health, and inasmuch as it appeared that this injury was inflicted by the defendant's servants while engaged in the performance of work essential to the discharge of that particular duty, the city was not liable, and they should return a verdict for the defendant. Exception is taken to this instruction, and we are now to consider whether the court erred. Distinctions do not appear to have been at all times accurately drawn between the classes of cases in which a municipal corporation would be liable and those in which it would not be liable for the misfeasance or nonfeasance of a public servant employed under municipal authority in the discharge of duties relating to corporate affairs. One general proposition, however, seems to have received general recognition at the hands of courts of last resort wherever that class of cases has been considered, and that class of cases is that, where an injury sustained is inflicted because of the misfeasance of an agent of a...