Thomas v. Williams

• Decision Date: 15 February 1962
• Docket Number: No. 1,No. 39194,39194,1
• Citation: 105 Ga.App. 321,124 S.E.2d 409
• Parties: Myrtice THOMAS v. Ernest WILLIAMS et al
• Court: Georgia Court of Appeals

Page 409

124 S.E.2d 409

105 Ga.App. 321

Myrtice THOMAS v. Ernest WILLIAMS et al.

No. 39194.

Court of Appeals of Georgia, Division No. 1.

Feb. 15, 1962.

Syllabus by the Court

1. When the bill of exceptions assigns error on the sustaining of a general demurrer to petition, but fails to state that this judgment was a final disposition of the case, yet the record shows that the general demurrer to the petition was sustained, a motion to dismiss bill of exceptions, on the ground that it does not affirmatively show jurisdiction of the Court of Appeals, will be denied.

2. A municipality is not liable for the negligence or misconduct of its officers in their performance of governmental functions.

3. Petition alleging that police officer incarcerated drunk prisoner, with lighted cigarette and matches on his person, in close cell, knowing he was helpless and partially unconscious, and left the prisoner unattended; that while prisoner was unattended mattress in cell caught fire and cell and surrounding room filled with smoke; that the officer returned and discovered smoke and knew fire was in the cell, but did not immediately remove prisoner, and while prisoner was still in the cell pumped water on burning mattress, which in creased amount of smoke; and that prisoner died of exposure to fire and smoke shortly after his removal from cell, stated cause of action against officer for negligence as to deceased prisoner.

4. Petition alleging above facts, and that while a person at the scene attempted to rescue the prisoner from the cell codefendant interfered and prevented the prisoner's being removed for about ten minutes, states cause of action against codefendant.

The plaintiff (plaintiff in error) brought an action for the wrongful death of her husband against the defendants (defendant in error), the acting Chief of Police of Snellville, Georgia (hereinafter called 'officer'), the City of Snellville (hereinafter called 'city'), and Ernest Williams. The petition alleged: The deceased was arrested by the officer and charged with 'driving under the influence of intoxicants, being involved in an accident, public drunkenness and disorderly conduct.' The arrest was not made on a state highway or right-of-way, but in an open field, on private property, when the defendant was not driving an automobile, was not in a public place, and was not disorderly. The charges made against the decesed were merely a front, scheme and device to cover up the wrongdoings and negligence of the defendants. When arrested, the deceased was unconscious and unable to stand and walk, and was dragged from the car by the officer and another person. The officer placed the deceased in a police car and transported him to the city jail and incarcerated him in a cage-like cell--a portable enclosure approximately 78 inches high, 96 inches wide, and 74 inches long, and divided in the center so as to create two cage-like enclosures approximately 48 inches wide, with no means for escaping. The cell was constructed with steel bands approximately one inch wide, woven and welded so as to leave openings between the woven steel bands of approximately one and one-fourth inches, which bands completely surrounded persons incarcerated in the cell. The cell was located in a small building used as a fire department and police department, within a 12 X 14 foot room having only two windows by which fresh air could enter. The officer knew of the deceased's condition when he incarcerated him as aforesaid, with matches and lighted cigarette, and exposed him to the hazards thereof, and did not have him examined by a doctor or seek medical attention for him. After thus incarcerating the deceased, the officer left and remained absent from the jail without having anyone in attendance. The mattress in the deceased's cell caught fire, while the deceased was in a helpless and partially unconscious condition and no one was in attendance, and the windows of the room, where the cell was, were closed, and there was no way for fresh air to enter and smoke from the fire to escape. The room and cell filled with smoke and the decedent began to suffocate. Approximately three hours after he had incarcerated the deceased, the officer returned to the jail and discovered the smoke. The officer, with knowledge of the fire raging within the cell, did not immediately remove the deceased from the cell, but first opened the doors and windows of the jail, got a fire pump started, began to pump water on the burning mattress, and ignored the deceased's peril. The pumping of the water increased the amount of smoke, decreasing the deceased's chances of survival. The defendant Williams arrived at the scene about two minutes after the officer. Four other persons arrived five minutes after the officer. One of these persons attempted to rescue the deceased from the cell, but Williams interfered and prevented the deceased from being removed for about ten minutes, until someone removed the deceased from the cell in spite of Williams' interference. The 'exposure to the fire and smoke had taken its toll' and the deceased died shortly after his removal. The defendants' negligence was the proximate cause of the death. At all times and places alleged, the officer was acting as Chief of Police of the city, within the scope of his employment, for and on behalf of and as agent of the city. The city was negligent in maintaining and operating a jail in an unsafe condition, in failing to have someone in attendance while the deceased was incarcerated; in allowing the fire to start, and committing the decedent to death by suffocation. The city was negligent further, through the officer, in the particulars (b), (d), (e), and (f), charged as negligence of the officer infra. The officer was negligent (a) in confining the deceased in the cage-like cell when he was in a partially unconscious and helpless condition; (b) in failing to have deceased examined medically before incarcerating him, when he knew his condition; (c) in incarcerating the decedent as aforesaid and leaving the jail with no one in attendance to supervise and protect the deceased; (d) in allowing the deceased, under the circumstances, to have on his person matches and a lighted cigarette; (e) in failing to rescue the deceased immediately after becoming aware of the fire; (f) in pumping water onto the burning mattress, increasing the smoke and the danger to the deceased; (g) in arresting and incarcerating the deceased when the decedent had not committed any violation of the city ordinances. The defendant Williams was negligent in deliberately and intentionally interfering with and hindering deceased's rescue.

Each of the defendants filed general demurrers to the petition. The city's demurrers included the grounds that 'a municipal corporation is not liable for the torts of policemen or other officers engaged in the discharge of the duties imposed on them by law', and 'the employment of a police officer and the maintenance of a jail are governmental functions and a municipal corporation is not liable in damages to any person for the imprisonment or death of one confined therein, caused by either the torts of the said police officer, or the negligent construction or maintenance of said jail.'

The trial court sustained all the general demurrers, and the plaintiff assigns error.

Grubbs & Prosser, J. M. Grubbs, Jr., Marietta, for plaintiff in error.

Webb & Fowler, W. Howard Fowler, Lawrenceville, for defendants in error.

HALL, Judge.

1. The defendant in error has moved to dismiss the writ of error on the ground that the assignment of error is incomplete and defective for the reason that it does not properly assign error on a final judgment. The plaintiff in error specifically assigned error on the sustaining of a general demurrer to his petition. He then stated in his bill of exceptions that 'if it had been rendered as claimed and contended by the plaintiff in error, [the judgment] would have been a final disposition of the cause of the plaintiff in error * * *.'

It is true that every fact essential to the jurisdiction of this court should be affirmatively shown, either in the bill of exceptions or the record. Sellers v. McNair, 42 Ga.App. 731, 734, 157 S.E. 373. However, in case of a conflict between the bill of exceptions and the record, the latter controls. Howell v. Seigler, 89 Ga.App. 221(3), 78 S.E.2d 874; Saliba v. Saliba, 201 Ga. 681(1), 40 S.E.2d 732. Here the record shows that a general demurrer to the petition has been sustained and that the plaintiff in error has assigned error on such judgment. There being an assignment of error on the final judgment, the motion to dismiss is denied.

2. When a city 'maintains a prison wherein to confine offenders, for the purpose of punishment of those charged with offenses, for safe-keeping until they can be tried,' it is exercising a governmental power; and for the negligence of its officers in exercising this power it is not liable. Gray v. Mayor and Council of Griffin, 111 Ga. 361, 363, 36 S.E. 792, 51 L.R.A. 131; Archer v. City of Austell, 68 Ga.App. 493, 23 S.E.2d 512. That a municipality cannot be held responsible for the negligence or misconduct of officers in their performance of governmental functions, is a rule that as recently as 1951 has been firmly adhered to by the Supreme Court of Georgia, as shown by City of Atlanta v. Hurley, 83 Ga.App. 879, 65 S.E.2d 44, certiorari dismissed 208 Ga. 457, 67 S.E.2d 571, and the cases discussed therein. It is also clear that a municipal corporation is not liable for illegal arrests or tortious conduct of its police officers in the discharge of their duties. Code § 69-307; Gray v. Mayor...