10 S.E.2d 201 | Ga. Ct. App. | 1940
1. It is not the character or name of the agent who executes the act, but it is the act itself which determines whether it be a governmental or ministerial function. A city in maintaining waterworks is carrying on a quasi-public business, a ministerial function, and the city is liable for the negligence of its agents and servants in respect thereto. The petition in the instant case shows the jurisdiction of the court, that the city was under duty to the plaintiff, the facts from which the duty arose, that there was a breach of duty, and that the plaintiff was damaged by such breach; therefore the petition sets out a cause of action and is good as against general demurrer.
2. Reasonable definiteness and certainty in pleading is all that should be required to render it exempt from attack by special demurrer. The notice required by the Code, § 69-308, where suits are brought against a municipality, "does not require absolute exactness of description, but simply that information as to the matters referred to may be given with sufficient definiteness to enable the city authorities to examine into the alleged injuries and determine whether the claim shall be adjusted without suit. The notice in the instant case was sufficient, and there was no fatal variance between this notice and the petition, for the notice described the general grievance against the city as set out in the petition, and in a general way apprised the city of the time, place, and extent of the injury.
3. "The liability in such cases is clearly stated thus: In all sewer or water-main cases cited by the plaintiff, in which the city was held liable, there was either evidence of actual negligence in the construction or operation of the water main or sewer, or notice to the city authorities of the break or overflow, accompanied by neglect on their part to repair promptly, or actual notice by reason of like prior occurrences that the sewer or pipe was defectively constructed or maintained. . . A municipality *2 is not an insurer of its water or sewer system, any more than of its streets. It is required only to use reasonable care in establishing and maintaining such a system." However, if the city failed, after notice of the leak, to use ordinary care to turn off the water and avert the danger of damages in which another act of negligence (failure to repair the lateral pipe) had placed the plaintiff's property, the plaintiff may nevertheless recover. The evidence in the instant case authorized the jury to find that the city failed to exercise ordinary care with respect to the plaintiff's property.
4. The special grounds of the motion for new trial are not meritorious. The judge did not err in overruling the motion.
The plaintiff alleged that he installed and placed in the basement a dance-floor and skating-rink, a piano, and amplifying system, electrical transcription machine, and records. Also: "5. That on or about said date there was a water-main owned and maintained by the defendant, which ran east and west on the south side of said Strickland building [which plaintiff occupied] at a distance of some ten feet from said building; and that there was one cut-off pipe which had formerly been used and which had been abandoned and which was plugged at a point some two feet north of said main and some eight feet south of said building. 6. That about said time said cut-off pipe rusted through, thus creating and causing a leak from said main. 7. That it was the duty of defendant to inspect and to keep in proper repair said main and pipes or cut-offs leading from same; and that said defendant had for a long time failed to so inspect said main or said cut-off pipe; and that said leak developed and was caused as a direct and proximate result of defendant's failure to perform said duties. 8. That on or about November 27, 1937, defendant, through D. L. Hughes, who was then and there its servant and alter ego, and who was *3 then and there engaged in and about defendant's business, bored a hole about three-quarters inch in diameter in the south wall of said building occupied by plaintiff in the basement where his said property was located, and that the said leak already described came through; that is, water came through said hole into said basement, ruining plaintiff's property, as will be herein shown. 9. That defendant failed to provide an exit for said water after boring said hole, and failed to stop said hole up or to cut off the water or to stop the flow of water into and upon plaintiff's property, and as a consequence said water continued to flow into said basement for several days, soaking, warping, and ruining his property. 10. That defendant was negligent and careless in boring said hole and causing said water to flow into said building. 11. That defendant was negligent and careless in failing to provide an exit or escape for the water in such manner as to prevent damage to plaintiff. 12. That defendant's negligence and carelessness [was] in failing to cut off the water and thus prevent damage to petitioner. 13. That defendant was negligent and careless in failing to stop or to close said hole, thus preventing damage to petitioner. 14. That petitioner was free from fault and blame in the premises. . . That plaintiff had no knowledge or notice that said hole had been bored in said hole [wall] or that said water was running into said basement and was ruining and had ruined his property until same had been so flowing for several days and had already ruined said property when plaintiff first gained any knowledge." The plaintiff further alleged that he gave proper notice to the city as provided in the Code, § 69-308, where suit is brought against a municipality, and attached to his petition a copy of the notice and demand. Also attached was an itemized list of the property damaged.
1. The defendant contends that the plaintiff bases his claim primarily on allegations 5, 6, and 7, and demurs on the ground that "the allegations of said petition do not constitute or show a cause of action in plaintiff against this defendant." The defendant argues in its brief that this demurrer should be sustained, because this "allegation in respect to the duty of defendant and failure to perform such duty is an allegation of absolute duty to inspect and keep in repair, whereas the duty resting on defendant is to use ordinary care in the maintenance of its water-mains." The defendant further argues in its brief, with respect to the general *4
demurrer, that "it is not alleged what length of time there was a failure to inspect, what length of time in which it could be reasonably anticipated that said pipe would rust through, or what were the circumstances requiring inspection. . . It is not alleged how or in what way the boring of this hole was in the performance of or connected with any ministerial duty devolving on the city." A special demurrer, and not a general demurrer, is the remedy for a want of certainty and definiteness in a petition; and thus in this case, even if the petition might be subject to special demurrer on the ground that several paragraphs might contain uncertain and indefinite statements, it is not subject to a general demurrer. Citizens Bank v. Union Warehouse Co.,
It is not the character or name of the agent who executes the act, but it is the act itself, which determines whether it be governmental or ministerial. McCrary v. Rome,
In discussing the liability of a city for negligence of its agents with reference to its waterworks, the superior court of Pennsylvania, in Morgan v. Duquesne Borough,
2. We now consider the special demurrers. Paragraph 7 of the petition is attacked for the reasons that "the allegations, both of conclusions of law and as averments of fact, are too indefinite and uncertain, and that the allegations of conclusions of law are erroneous ones." The defendant further complains of the joining in the petition "of the alleged acts of negligence . . set out in paragraphs 5th, 6th, and 7th, and the positive wrong, or separate act of negligence — if it can be so regarded — in paragraph 8th, and the succeeding paragraphs through paragraph 13th, which are connected with and dependent on the allegations of paragraph 8th. . . The allegations of paragraph 7th are allegations of a failure to perform; the allegations of paragraph 8th complain of the performance of an act. If both of these paragraphs can be said to set out a cause of action, then the petition alleges not one but two causes of action in the same count." Paragraph 6 of the demurrer complains of variance between the allegations made in the demand, copy of which is attached to the petition, and the allegations of the petition, in respect to the boring of the hole in the wall of the building, contending that under the ruling inHarrison Co. v. Atlanta,
With reference to the allegations of negligence, the Supreme Court has said that the better practice in actions for damages on account of negligence is to make each distinct act of negligence the subject of a separate paragraph. Atlanta, K. N. Ry. Co. v. Smith,
3. The defendant contends, under the general grounds, that there was an entire lack of evidence tending to show any defect in the water main occasioning a leak, and that the defendant did all that it could to locate the source of water after having been put on notice of the defect. The burden rested upon the plaintiff to show that his damages resulted from the negligence of the defendant; and this he could have done by showing the injury to his property *9 by the water escaping from the defendant's line, followed by evidence of unreasonable neglect in repairing the line after actual notice, or for so long a time that the jury could infer negligence on the part of the city officials in not discovering the defect in the line even without notice. "The borough [city] can not defend as a matter of law because its officials had neither actual nor constructive notice. There may be a recovery on the ground of the negligence of the borough officials in not making reasonably careful inspection of its water lines from time to time. All of these questions of notice and negligence in failing to discover the remedy and defects in the water line were properly for the consideration of the jury." Morgan v. Duquesne, supra, 105. It appears from the testimony of R. C. Green, a witness for the defendant, that when a person desired to "tap" the water main for the purpose of carrying water to him, "he made application to the city to have the main tapped, and the city had the water superintendent tap it and made a charge of five dollars to put in a tap. Just how much of the pipe did the city itself put in, they made a tap and put in what is called a goose-neck and cut-off. The goose-neck leads out of the main. The cut-off valve is very close to the main. . . The consumer pays for the tap, that includes the material and labor, the services. Pipes [lateral or service pipes] are inserted in the cutoff. The goose-neck is what goes into the main, it screws in by threads. As to whose property that pipe goes off, . . I suppose it would be the customer's, the customer pays for it." Mr. Hughes, superintendent of the waterworks system, testified: "When the consumer desires to be furnished with water the city taps the water main and the party that uses the water pays five dollars for the tap; from the main on that is theirs; they pay for that. They tap a hole in the main where you can put a pipe in there to furnish the people water. The city does not extend its work at all, from the main on it belongs to the man that is using the water. The city supervises the tapping; the consumer pays for this tapping. The small pipe belongs to the man that owns the property."
With reference to the liability of a city for damages from leaking lateral pipes, it was said in Terry v. New York, 8 Bosw. 504, 510: "The injury in this case arose from defects in the lateral service pipes; these are inserted in the main street pipes by private individuals at their own cost and risk, to bring the water into their *10 own premises for consumption, and they remain the property of such individuals. In such case the defendants are no more liable for the result of an imperfection in their construction than for those of vessels in which citizens might carry the water from the reservoirs if they were public fountains. The defendants are trustees of the water as an article of public consumption, and are bound to furnish it to all who desire to use it, under proper regulations, but they are not bound to supervise the insertion of service-pipes or superintend their fabrication, fitting, and preservation, except to prevent injury to their works; the water drawn through private service pipes becomes as much private property as though it had been sold and the subsequent ill use of it by negligence or otherwise to the injury of another can not make the defendants liable any more than if they had sold an axe with which trespasses had been committed by cutting timber on another person's property."
As to whether the leak in question occurred in the defendant's water-main or in the lateral or service-pipes, R. C. Green, chairman of the water committee, testified: "It [the leak] was beyond the cut-off away from the main; there was no leak between the cut-off and the main that we could find any indication. There was no indication that there was a leak beyond the cut-off valve. There was not any leak in the cut-off valve. I said there was no leak between the cut-off and the main." I. M. Thompson, mayor of Tallapoosa and a witness for the defendant, testified: "There was not any leak from the main. There was not any leak from the main out to the cut-off. There was not any leak from the cut-off valve, itself." The plaintiff's testimony shows that the leak was in the lateral or service-pipe. He testified: "I saw water running out of there, out of the pipe, I sure did. Somebody, I think it was Tom Daniel, held his hand up under there, and I saw the clear water running into the muddy water; and he said, `There's the leak, right there,' just about an inch or so beyond the cut-off. I couldn't say whether it was just exactly an inch or not, but it was just a little piece from the cut-off. I mean a cut-off valve; yes, when he cut it off, it stopped. . . The water came from next to the cut-off, and when they cut it off it quit running. It was coming from the other side of the cut-off [the side leading away from the water-main]." *11
The evidence therefore shows, as contended by the defendant, that the water came from a leak in a lateral pipe not the property of the city; and a recovery could not be had on the theory that the city negligently maintained its water-mains and connections. Littlefield v. Newport Water Co.,
4. With reference to the special grounds of the motion for new trial the defendant says: "We make no complaint of this, further than one complaint that the evidence would not authorize the submission of the question to the jury. . . The jury should at least have been confined, in their consideration of the case, to a consideration of whether the damage was caused by the particular defects alleged in the petition." As we have said, all questions of notice and negligence in failing to discover and remedy any defects in the water line were properly for the consideration of the jury. The case was therefore properly submitted to the jury. With reference to the latter contention we quote from the judge's charge: "In this connection, if the plaintiff recovers at all he must recover upon the allegations he makes of negligence against the defendant." The special grounds are not meritorious.
Judgment affirmed. Broyles, C. J., and Gardner, J., concur.