Turk v. City of Rome

• Court: Georgia Court of Appeals
• Writing for the Court: WEBB; BELL, C.J., and MARSHALL
• Citation: Turk v. City of Rome, 212 S.E.2d 459, 133 Ga.App. 886 (Ga. App. 1975)
• Decision Date: 24 January 1975
• Docket Number: No. 1,No. 50082,50082,1
• Parties: Adolph TURK et al. v. CITY OF ROME

Page 459

212 S.E.2d 459

133 Ga.App. 886

Adolph TURK et al. v. CITY OF ROME.

No. 50082.

Court of Appeals of Georgia, Division No. 1.

Jan. 24, 1975.

Rehearing Denied Feb. 7, 1975.

Robert J. Evans, Rome, for appellants.

Robert M. Brinson, Rome, for appellee.

Syllabus Opinion by the Court

WEBB, Judge.

Adolph and Geneva Turk filed suit against the City of Rome, a municipal corporation, alleging that on April 28, 1972, the city's workmen dug a ditch from abutting property onto their property; that in the process the workmen cut down a portion of plaintiff's hedge and destroyed a part of their wire fence running across the rear of the property, damaging them in a stated amount; that as a direct result of the negligent construction of the ditch, the plaintiffs sustained damage in a stated amount on May 3, 1972, when a thunderstorm caused surface water to gush down the ditch destroying their garden, damaging equipment and supplies stored in the carport, and depositing mud and silt on their yard; and that they suffiered further damage in the form of decrease in property value.

Defendant served interrogatories upon plaintiffs, and from plaintiffs' answer it appears that no ditch existed prior to April 28, 1972; that except for occasional and minor accumulation of water in the carport, no water problems were suffered prior to April 28; that the ditch dug on April 28 'begins 20 feet beyond plaintiffs' property at the junction of two other ditches which in turn begin at culverts on Maplewood Drive. Said dutch extends 10 feet onto plaintiffs' property'; that the 'type' of ditch was 'drainage and sewerage'; that the purpose of the ditch was to carry excess water onto plaintiffs' property; and that the plaintiffs suffered water damage when it rained on subsequent occasions.

On this record the trial court granted summary judgment to the city, and plaintiffs appeal. Held:

1. 'The construction, installation and maintenance of a sewer-drainage system (including that for surface water) is a governmental function of the city. City Council of Augusta v. Cleveland, 148 Ga. 734, 98 S.E. 345; Bass Canning Co. v. MacDougald Constr. Co., 174 Ga. 222, 162 S.E. 687; City Council of Augusta v. Williams, 206 Ga. 558, 57 S.E.2d 593; Barr v. City Council of Augusta, 206 Ga. 750, 58 S.E.2d 820; Harrison Co. v. City of Atlanta, 26 Ga.App. 727, 107 S.E. 83; Lewis v. City of Moultrie, 27 Ga.App. 757, 110 S.E. 625; City of Atlanta v. Robertson, 36 Ga.App. 66, 135 S.E. 445; City of Atlanta v. Key, 42 Ga.App. 214, 155 S.E. 499; Neese v. City of Atlanta, 45 Ga.App. 376, 165 S.E. 165; Rogers v. City of Atlanta, 61 Ga.App. 444, 6 S.E.2d 144; Foster v. Mayor, etc., of Savannah, 77 Ga.App. 346, 48 S.E.2d 686; City Council of Augusta v. Williams, 81 Ga.App. 132, 58 S.E.2d 208; City of Douglas v. Cartrett, 109 Ga.App. 683, 137 S.E.2d 358. 'It seems well settled in this State that in the negligent performance of its governmental duties a municipal corporation is not liable in damages to one who is injured while the municipality is engaged in the performance of such duties.' Mayor, etc., of Savannah v. Jones, 149 Ga. 139, 141, 99 S.E. 294. And see Love v. City of Atlanta, 95 Ga. 129, 22 S.E. 29; 51 ASR 64; Nisbet v. City of Atlanta, 97 Ga. 650, 25 S.E. 173; Roberts v. Mayor, etc., of Savannah, 54 Ga.App. 375, 188 S.E. 39; Code § 69-301.' Foster v Crowder, 117 Ga.App. 568, 569, 161 S.E.2d 364, 365. Accord: City Council of Augusta v. Cleveland, 148 Ga. 734(1), 98 S.E. 345.

2. 'But the fact that in the instant case the plaintiff may have made a fruitless effort to lay a charge of negligence upon the city with regard to matters covered by its exemption from liability (Code § 69-301) ought not to defeat an otherwise well-stated cause of action . . . The allegations that negligence or errors were committed in the exercise of the governmental function do not help the cause, but, not being germane, will be treted as surplusage, so as not to destroy it. It is unnecessary for a plaintiff to name or clasify the cause of action relied on, but the test of the sufficiency of the petition as aganst a general demurrer is whether the defendant can admit all the allegations made and escape liability.' City of Atlanta v. Due, 42 Ga.App. 797, 803, 157 S.E. 256, 259. (Emphasis supplied.)

3. Even though the construction, installation and maintenance of a sewerdrainage system, including that for surface water, is a governmental function, a municipal corporation can nevertheless be held liable with respect to these activites on the theory on nuisance (Reid v. City of Atlanta, 73 Ga. 523; Smith v. City of Atlanta, 75 Ga. 110; Maguire v. City of Cartersville, 76 Ga. 84; Mayor & Council of Brunswick v. Tucker, 103 Ga. 233, 29 S.E. 701; Holmes v. City of Atlanta, 113 Ga. 961, 39 S.E. 458; Massengale v. City of Atlanta, 113 Ga. 966, 39 S.E. 578; Mulligan v. City Council of Augusta, 115 Ga. 337, 41 S.E. 604; Langley v. City Council of Augusta, 118 Ga. 590(8-10), 45 S.E. 486; Holdbrook v. Town of Norcross, 121 Ga. 319, 48 S.E. 922; Mayor, etc., of Milledgeville v. Stembridge, 139 Ga. 692, 78 S.E. 35; Bass Canning Co. v. MacDougald Construction Co., 174 Ga. 222, 162 S.E. 687; City of Rome v. Brown, 184 Ga. 34, 190 S.E. 787; DeKalb County v. McFarland, 223 Ga. 196, 154 S.E.2d 203; Baranan v. Fulton County, 232 Ga. 852, 209 S.E.2d 188; Harris v. City of Rome, 10 Ga.App. 409, 73 S.E. 532; City of Atlanta v. Holcomb, 20 Ga.App. 601, 93 S.E. 259; Lewis v. City of Moultrie, 27 Ga.App. 757, 110 S.E. 625; City of Albany v. Jackson, 33 Ga.App. 30, 125 S.E. 478; City of Macon v. Macon Paper Co., 35 Ga.App. 120, 132 S.E. 136; City of Macon v. Douglas, 45 Ga.App. 798, 165 S.E. 922; Cannon v. City of Macon, 81 Ga.App. 310, 58 S.E.2d 563; City of Macon v. Cannon, 89 Ga.App. 484, 79 S.E.2d 816; City Council of Augusta v. Thorp, 103 Ga.App. 431, 119 S.E.2d 595; Gleaton v. City of Atlanta, 131 Ga.App. 399, 206 S.E.2d 46), and on the theory of taking or damaging for public purposes withoutjust and adequate compensation being first paid. Constitution Art. I, Sec. III, Par. I (Code Ann. § 2-301); City of Atlanta v. Word, 78 Ga. 276; Mayor, etc., of Albany v. Sikes, 97 Ga. 30, 20 S.E. 257; Barfield v. Macon County, 109 Ga. 386, 34 S.E. 596; Langley v. City Council of Augusta, 118 Ga. 590, 598, 45 S.E. 486; DeKalb County v. McFarland, 223 Ga. 196, 154 S.E.2d 203; City of Albany v. Jackson, 33 Ga.App. 30, 125 S.E. 478; City of Atlanta v. Due, 42 Ga.App. 797, 157 S.E. 256, supra; Gwinnett County v. Allen, 56 GaApp. 753, 194 S.E. 38; Clarke County School District...