26 Ga. App. 727 | Ga. Ct. App. | 1921
Lead Opinion
(After stating the foregoing facts.)
The petition in this case is based upon a notice given by the plaintiff to the City of Atlanta as required by § 910 of the Civil Code of 1910. This notice, after stating that at a certain time and during a very hard rain the plaintiff's " place of business was overflowed and the water ran in the basement of [the plaintiff's] building,'' and damaged the goods stored therein, alleged that " the overflow was caused by the fact that the sewer-eye was entirely too small to carry away the water, and the overflow ran into the basement.” The notice stated also that on several occasions the attention of the city officials was called “ to the inadequate condition of the sewer in question in the event of a hard rain.” (Italics ours.) It is clear that the only negligence stated in this notice is " the fact that the sewer-eye was entirely too small.” This is the foundation upon which the petition is constructed. The words "inadequate condition,” in the connection in which they are used, can mean nothing more than that the sewer-eye was insufficient in size for the specific purpose for which it was built. This notice makes no reference to any “ defective construction ” of the sewer-eye, and the petition mu.'t be based upon the specific negligence alleged in the notice. Wheii the notice states a ground of negligence the petition must be bottomed upon that particular ground of negligence, and this cannot be changed by allegations in the petition. For the notice to state one ground of negligence and the petition another would be to allow a person to bring a suit against a municipality without complying with § 910, supra, and would require the municipality to defend a suit it had been given no chance to settle. This would defeat the end sought to be attained by the passage of the act embraced in that section of the code. We are not unmindful that in Langley v. Augusta, 118 Ga. 600 (45 S. E. 490, 98 Am. St. Rep. 133), the Supreme Court said: "The act of December 30, 1899, requires that all persons having claims against municipal corporations, for injuries to person or property, present ‘in writing such claims to the governing authority of said municipality for adjustment, stating the time, place, and extent of such injurjr, as near
As we construe the petition, it does not broaden or change the allegations of negligence from that stated in the notice; and the only, negligence alleged in the petition, as the cause of the damage to the plaintiff’s property, is the same as that stated in the notice, to wit, the small size of the sewer-eye. Paragraph 6 of the petition is as follows: “ Petitioner says that the cause of said water running down into its said basement was due to the fact that the manhole or eye into said sewer from the street was entirely too small to carry off the flood of water into the sewer; it being too small permitted the water to run through and over the sidewalk and into the basement of petitioner’s place of business, as the eye to the
Let it be borne in mind that this petition is not one for negligently failing to keep a sewer in repair, nor for negligently allowing a sewer to become obstructed, but is one for constructing a sewer with too small an eye. But were it otherwise, the Supreme Court in City Council of Augusta v. Cleveland, 148 Ga. 734 (98 S. E. 345), held that “the duty of a city to maintain its sewerage draining system in a good working and sanitary condition is a governmental function.” In the opinion in that case the Supreme Court said (p. 736) : “This conclusion is in accordance with what was said in the case of Love v. Atlanta, 95 Ga. 129 (22 S. E. 29, 51 Am. St. Rep. 64), and the other cases decided by this court. Watson v. Atlanta, 136 Ga. 370 (71 S. E. 664). See also 6 MeQuillin Mun. Corp. § 2669.” The principle announced in the Love case has been
Under its charter the City of Atlanta has full power and authority, through the proper officers, to lay and maintain sewers. In the case under consideration, in determining the location of the sewer and the .size of the eye thereof, the municipal authorities were exercising their public or governmental functions, and these were discretionary acts, and “ as long as an official public act can be upheld as being within the exercise of the discretionary power conferred by the charter the will of the legislative body is supreme, and the courts have no power to interfere.” “ Under the charter of the City of Atlanta, the discretion of its municipal authorities, within the sphere of their powers, is very broad, and this discretion is to be exercised according to the judgment of the corporate authorities as to the necessity or expediency of any given measure. It follows, therefore, that where these authorities are acting within the scope of their duties and exercising a discretionary power, the courts are not warranted in interfering, unless fraud or corruption is shown, or the power or discretion is being manifestly abused to the oppression of the citizen.” City of Atlanta v. Holliday, 96 Ga. 546(1) (23 S. E. 509). In City of Atlanta v. Trussell, 21 Ga. App. 343 (94 S. E. 651), Chief Judge Wade said: “The decisions are practically uniform in holding that the duties of municipal authorities in adopting a general plan of drainage, and in. determining when, where and of what size and at what level drains or sewers shall be built, are of a quasi-judicial nature, involving the exercise of deliberate judgment and wide discretion; and the municipality is not liable for an error of judgment on the part of the authorities in locating or planning such improvements. See 28 Cyc. 1313(2).” “An adjacent property owner is not entitled to an injunction upon the ground that the sewer which, in the discretion of the municipal authorities, is about to be inserted, may be too small for the volume of water which, at times, will necessarily pass through it, thus flooding his lot, causing sickness, and otherwise damaging him.” Mayor &c. of Americus v. Eldridge, 64 Ga. 525(2) (37 Am. Rep. 89). In City of Little Rock v. Willis, 27 Ark. 577, the Supreme Court of Arkansas said: “For the construction of a sewer which has not the capacity to carry off the
Judgment affirmed.
Concurrence Opinion
concurring. I agree with Judge Bloodworth that the petition in this case sets forth no cause of action and was properly dismissed .on general demurrer. The Supreme Court in Love v. City of Atlanta, 95 Ga. 129 (22 S. E. 29, 51 Am. St. Rep. 64), definitely established it as the law of this State that the City
Dissenting Opinion
dissenting. The majority of the court are of the opinion that the petition as amended failed to set out a cause of action, and that the judgment of the trial court sustaining a general demurrer and dismissing the suit should be affirmed. I can not concur with my colleagues in this judgment. I am of the opinion that the petition as finally amended was legally sufficient to withstand a general demurrer. While it is now generally recognized that a municipality is not liable for damage resultant from the exercise of a governmental function, it is otherwise if the damage is the result of a ministerial function. The Political Code (1910), § 897, succinctly states the rule as follows: “ Municipal corporations are not liable for failure to perform, or for error in performing, their legislative or judicial powers. For neglect to perform, or for improper or unskillful performance of their ministerial duties, they are liable.” The record in the instant case calls upon us to
In Langley v. Augusta, 118 Ga. 590, 598 (45 S. E. 486, 489, 98 Am. St. Rep. 133), it was said: “The officers in charge of the affairs of a municipal corporation may select places for the con: struction of a system of sewerage and drainage, and adopt a plan for such construction, without rendering the city liable in damages for injuries resulting from such selection and from the proper [italics mine] construction of the system. These officers may also, if it is necessary, take or damage property of private citizens in construct
It is true, of course, that pleadings must be construed most strongly against the pleader, but this does not warrant a strained
In reaching this conclusion I have not been unmindful of the recent ruling of the Supreme Court holding that “the duty of a city to maintain its sewerage-drainage system in a good working and sanitary condition is a governmental function” (City of Augusta v. Cleveland, supra), but since the decisions upon which I base my opinion are apparently direct rulings to the contrary, and were rendered prior to that decision, I am constrained to follow the older line of cases, which have never been criticised, modified, or overruled.
As to that part of the majority opinion which deals with the case as if there was a fatal variance between the notice and the petition, suffice it to say that the record before us presents no such question for adjudication, since the city waived its right to insist upon a variance, by not specially demurring to the petition on this ground. See Langley v. Augusta, 118 Ga. 590, 601(12) (45 S. E. 486, 490, 98 Am. St. Rep. 133), where it was said: “The city had a right to waive the notice altogether, as well as its right to insist upon a variance. Foster v. Bellaire (Mich.), 86 N. W. 383. And it would seem that a failure to demur to the petition on this ground when the notice was attached thereto as an exhibit would amount to a waiver.”