*1 CITY HURLEY. 33424. OF ATLANTA v. Rehearing 18, April May 1951. 1951.

Decided denied J. Savage, Murphy, J. C. G. J. M. John Bloodworth, B. E. Henry Bowden, plaintiff L. Feagin, for in error. Bradford, Judge,

K. C. E. B. contra. against action by Hurley C. J. was an John L. This Sutton, damages personal for sustained City Atlanta for alleged negligence de- plaintiff as a of the result sub- plaintiff's petition quite lengthy, but the fendant. allegations therein, so far as deemed material stance of the question here defend-' presented, is: That the a decision of operate city City Atlanta, authority has the and does ant, violating ordinances persons where convicted of prison farm required to municipality labor, are confined and of said imposed Novem- pay fines such violations. On failure to Atlanta was arrested in the 12, 1949, the ber police tried drunkenness, upon failure pay fine pay $12, and sentenced de- days. farm for 20 prison be confined at the fine, to extending city, Broad Street said fendant was grade, close necessary cover and work it was doing On had been removed. buildings left where certain excavations prisoners, other plaintiff, 14, 1949, November he from farm where prison by the defendant transferred Extension working sentence the Broad Street Project, and he and ordered other directed an em- work-gang, or an the “boss” of the officer who get ployee defendant, an down into excavation building feet deep, where had been and while removed, *2 as plaintiff shoveling rocks, was excavation dirt and com- by excavation, “boss man,” ordered the the walls of the posed dirt, brick, and caved in in- plaintiff, of rocks flicting permanent very him and injuries; serious the directing defendant gang “boss-man” of the for the was present, collapse and the cave-in and ex- work, of the the the walls of drill, caused a sinker an commonly cavation known as was being the another hammer, used on air which was walls plaintiff, prisoner near the and under the and orders directions charge and of in work of the “boss-man” the defendant negligence alleged prisoners Many the at that time. acts of were as, failing inspect brace the against defendant, the such to and plaintiff of the excavation where was ordered walls and sides failing injured, was in to and where he and compelled work, diligence place safe providing in use reasonable care to com- plaintiff was ordered working where facilities warning plaintiff give any failing to work, and in pelled to in- he the excavation where dangerous condition all plaintiff from was free alleged jured, etc. It premises; in and that his and blame movements fault guard having or and ex- and directed the “boss” controlled prisoners his authority compel obey him and other ercising to to orders. general

The filed petition defendant demurrer to the on (1) grounds petition that the fails of action; set cause to (2) petition on that, face shows its at the time the received plaintiff injury, claims defendant public discharging duty act of and exercising supervising public function and labor municipal prisoners; (3) the labor works injuries plaintiff on its face that are petition shows through negligence fel- have occurred the acts claimed negli- plaintiff, which fellow workers servants low city could not held defendant be accountable. gence overruled, excepted. and the defendant The demurrer awas prisoner, working out public street in the City sentence when Atlanta he was alleged. general respect rule in this is that “A municipal corporation is not liable for resulting convicts from negligence guard, keeper, policeman, or convict them, that, boss for the reason in the maintenance and the convicts, municipality is exercising duties, and cannot responsible held or misconduct of officerswhich must, necessity, employ.” 46 A.L.R. 100. The case Nisbet v. (25 very Atlanta, 173), 97 Ga. 650 S. E. similar present ruling appli and the there made is cable and controlling the case at bar. The in that case is as follows: “The question involved been in this case has passed upon too often require elabora further tion. Neither the law of master doctrine and servant nor the respondeat superior under applies case where *3 going punishment for a is municipal violation of a ordinance killed consequence negligence in or misconduct having prisoner. of officer custody of or control such because, municipal corporation true This is in such matters, exercising governmental is powers and discharging governmental in duties, it, the course of of necessity, which employs the serv question. in ices of the officer See the case of Wilson Mayor v. Macon,

& Council 88 Ga. directly 455 S. E. which 710], is [14 of point, in and'the authorities collected; and, opin there also, the ion of Justice Atkinson in the more City recent case of Love v. Atlanta, 95 Ga. 129 29, which, S. E. 51 Am. St. R. 64], [22 of principle in is decisive of ruling the case in hand,” now and the in municipal the headnote is: “A corporation is not in liable damages for the death of one convicted in a corporation court upon public sentenced to work streets, although-his death was occasioned while the convict in such work, and resulted from part of the foreman placed by municipal who had been in authorities of foreman thereof, and from failure such provide con injury, proper after his with the medical attention vict, treat Mayor Gray was said in Griffin, ment.” It v. &c. 111 Ga. general (36 361, 792, 131), S. E. 51 L.R.A. “The is 363 rule established, municipal corporation that a is well not liable damages injuries negligent im for sustained governmental proper purely power. preserv exercise aof community good public quiet, etc., peace, order, ation of governmental legislative authority a function. is Where the exercising city passes purposes, clearly for such a ordinances is enforcing governmental power. such When, purpose for wherein ordinances, prison erects maintains charg those offenders, punishment, or purpose for confine is offenses, tried, safe-keeping they ed with until can for exercising the ordinances power. same The enactment such provisions belong their made enforcement for police purely which power, in character [Italics upon principle non-liability . . ‘The rests ours.]. ground discharge purely that, broad in the its delegated por corporate functions, body which been has sovereign power, torts committed tion not liable for " powers.’ discharge of such of such duties exercise Mayor v. Atlanta, 233, v. Wilson Also, City Doster Ga. see Macon, (supra), City &c. 88 Ga. 455 Atlanta, Love v. (supra), App. 493, Ga. 129 and Archer v. Austell, 68 Ga. (23 512). general seq. 2d, stated, 495 et E. As above S. not liable municipality rule is that a prison prison while or while received confined sentence, and dif prevails However, such rule this State. jurisdictions, adopted rule has been some of the other ferent re instance, Alabama; in error cites and defendant City Anniston, the case 214 Ala. 522 of Hillman lies (108 among supporting 39), others, So. A.L.R. present *4 in position case. carefully lengthy have read and elab-

We and considered the opinion error, brief the defendant in but we are of the orate by this case is controlled authorities cited above in this that decision, and not by by authorities cited the defendant municipal course, settled law cor- error. Of it is well that a perform for liable for or poration neglecting in this State is improper performance or unskilled its ministerial But duties. rule municipal corpora- case present comes within that a damages liable for is State is not one who tion this gov- performance engaged municipality is while the duty. ernmental defendant’s subject petition plaintiffs

The overruling erred judge the trial demurrer, and general demurrer. p. Ann. 232; Code, (Ga. 1945, L. act of 1945

Pursuant case any consider the full court 24-3501), requiring Supp., § case may dissent, this division judges of a one of the in which a whole. the court as and decided was considered Worrill, Gardner MacIntyre, P.J., reversed. Judgment J., dis- specially. Felton, Townsend, concurs JJ., J., concur. sents. opinion majority concurring. I concur in the J.,

Worrill, this cited, therein correct under authorities think it is am thereby, but I also is bound court re- in this principle Supreme fixed Court rule of law changed modified. spect should be based opinion is concurring specially: This J.,

Townsend, gov- keeping prisoners by theory ernmental function and that since are not liable for cities agents their officers, while servants recovery. in a function there can be no Cited support City 233; of it are Doster v. Atlanta, Ga. Wilson 455; City Atlanta, v. Mayor Macon, v. &c. 88 Ga. Love City Atlanta, Gray Mayor Ga. 129; 650; 95 Ga. Nisbet v. Austell, Archer v. 68 Ga. &c. Griffin, Ga. Supreme App. Court holdings 493. Were it not our City Atlanta, in Nisbet v. supra, might this affirm- have thereby ed case recovery held that a this could be had. were the Nisbet Certainly, the writer have would it.not only because it case point dissented sufficiently require the instant case the writer to concur. Dos- brought point ter is not in because was case “public pris- works” while was beaten fellow who “initiating” presence guards. him in oners who reprehensible may been, grew conduct However prisoners. keeping function of to the Wilson case where the true as con- same is powerful with a drunken physique in a cell fined *5 who beat him unmercifully. Also, Gray an action case was by prisoner suffering a on physical account injury of mental . by caused the condition of which the

kept and the Archer case where a lost his life by being of confined municipal jail in a no ventilation and smoking stove fire resulted in smothering him. All these cases an disclose inhumane and on part lackadaisical attitude prison prisoners. Although authorities toward condition this may improved century, type somewhat in this this together with like at- constantly being brought instances public, yet tention of the discloses that there room remains improvement in penal the administration our institutions of cities, repudiated counties and State. age Our has medieval theory prisons are of suffering instruments but torture, always implemented has mot repudiation vigor with the necessary put an end abuses.

The writer feels recognize law should exception an rule that cities are not liable for functions prisoners keepers cases where the display an unchristian inhumanity society placed toward keep- has in their those whom ing for rehabilitation. The writer also interest feels that justice humanity exception recognized an should be law may so that the States be held liable con- for the brutal duct those in behalf well its as their culpable neglect. held, Prisoners are wards of the State and are only not for punishment, but for They rehabilitation as well. wholly dependent are safety physical for their welfare keepers. persons their Those same ac- who are shocked an caged count of ill treatment of animal in a may zoo by the being gross unmoved death human negli- due.to gence power whom consigned those to of the law him. has

However, recognizes the writer make this court cannot apply already law but must construe and those in existence. laws govern- It follows therefore that where person recovery mental function there can be no on behalf of a through agents, or killed officers, its Love Atlanta, supra, brought and servants. private prisoner, only citizen who not a and is cited purpose the court for the showing person runaway garbage inflicted cart were com- not pensable garbage because the collection having direction act, it been done under the of the Board *6 to governmental agency. brings Health which was a This us City Atlanta, supra, Nisbet v. which the writer con- feels is The authority that clusive the. action cannot be maintained. her brought alleging that Nisbet, prisoner, widow of a an action city, injured working the husband was while on the streets of together lack function; total injury ministerial that this with a wrongful death brought of medical attention thereafter about his predicated for which she sues. Had Nisbet the decision been solely upon give the failure medical attention not to it would binding on this court in as be this the treatment of respect It prisoner in this would be function. brought negligence was, however, theory also ministerial engaged in which he manner while function. plaintiff theory predicated instant ease is that min- street, which prisoner engaged in is a

was a above go under bank required function. He to isterial working. to other This bank which caused injuries. resulting in severe free in, cave most Had he been a danger go bank, upon man and been under seeing told to this risk. he could have refused to do so and thus not assumed the freedom choice in matter But as he had no supervisor pen- obey had he refused the command greater might not been alty disobedience, while it have such obeying, certainly would have penalty he than suffered but might fallen, not have inevitable. The bank been more had reprisal. brought Therefore, he would certain mutiny have deprived his law, having no alternative. The yolition respect and assumed power this to exercise every justice be allowed dictate of not him, should through gross injury upon him impunity to force additional servants. of its plaintiff was, as to injury city at the time keep- engaged functions, in two one him, governmental, penal affairs, min- ing prisoners other administering building not Were it case isterial, that of streets. the Nisbet our more humane views this court could if would follow the- recognize and Florida and neighboring States Alabama at the city theory right recover on function. in a ministerial injury time his prob- understanding of social Social reforms our increased gradual toward past century brought trend lems jus- administration more humanitarian and even-handed feels this, In penal in the field of view of writer tice law. the Nisbet case be modified should extent should plaintiff with cause of action here set out such day if he court, recovery entitled to and to is able his allegations petition. bound prove the Since modify ruling power case and is without the Nisbet ques- it, the but judgment, writer concurs in the feels that public concern, and importance, tion one moment *7 inequitable. that the result reached is no there J., dissenting. am of is Felton, I question in- principal Georgia authoritative decision on the lie. the action will volved, majority, dealt and that being urged that the work successfully I think can be do not it was and sidewalks City of Atlanta on streets done if purely governmental function and would be so considered prisoner The com- question working not was involved.. ministerial, governmental functions, bination the two case think difficulty in I do not causes the this case. controlling. One reason City v. Atlanta, supra, Nisbet leads fact phase not mentioned. This capacity that the dual inattention considered that the me to believe that the court of the death not the prisoner proximate cause was the death will be noted that that was a injury upon the streets. It why injuries. I personal Another and not one for case it judge, deciding think considered the Nisbet case was v. cited jail that the court Wilson as a confinement case is directly stated Mayor 455, that was Macon, &c. 88 Ga. municipal corporation that a holds point. The Wilson case prisoner at liable'for-personal by one is not sustained seem confined in the the hands of another same cell. It would regarded Gray Griffin, court 111 Ga. 361 also that the regard case Nisbet case as confinement and did not 887 involving case municipality, as one two functions as this question action does. answer to the whether the instant question will lie function rests in answer to the as to which secondary subordinate, was dominant and which incidental. my In opinion, the ministerial function dominant incidental. prisoner function it had place In the first have done the if city would work we had no .the I think help place do it. In next inci governmental function would have hold that work citizen, prison, dental if some other one and not not ing job prisoner on the had been job, by what neglected city had done or under to do where circumstances injury than agent would be liable if a free had caused rather prisoner. any I do think that hold the not would ground from immune suit in such a case that when negligent omission, committed the act the city purely governmental in a function. There few are but involving precise point. cases the reason Alabama follows re goes allowing ing set forth above and even extent of in the course guard covery for an assault (108 Anniston, 214 Ala. 522 City the work. Hillman v. in 220 89). same case So. R. See also A. L. (114 55). The So. (126 169), and 216 Ala. Ala. 505 So. City in Ballard v. Alabama Supreme followed Florida Court 654). are (168 contrary So. To Tampa, 124 Fla. 457 (118 So. Miss. 290), Booneville, 151 Town of Warren v. (50 712). In some Pac. Tulsa, 174 Okla. Savage v. indispensable. immunity is doctrine of cases the *8 beyond the doctrine extended many our courts cases In tendency “The modern contrary precedent. and often im of municipal the doctrine extend rather than to restrict seem cases majority A 266-7, 573. munity.” 38 Am. Jur. § imprac combined, functions are it is the two that where to hold private the rule as activi them and separate ticable Jur. functions) be followed. 38 Am. must (or ministerial ties 608. 305, §