City of Atlanta v. Kenny

Full title: CITY OF ATLANTA et al v. KENNY et al

Court: Court of Appeals of Georgia

Date published: Apr 18, 1951

64 S.E.2d 912 (Ga. Ct. App. 1951)

64 S.E.2d 912

Opinion

33339.

DECIDED APRIL 18, 1951. REHEARING DENIED MAY 4, 1951.

Damages; from Fulton Superior Court — Judge Moore. October 5, 1950. (Application to Supreme Court for certiorari.)

J. C. Savage, J. M. B. Bloodworth, John E. Feagin, Henry L. Bowden, Tindall Tindall, J. F. Kemp, for plaintiffs in error.

Mitchell Mitchell, contra.

1. The petition set forth a cause of action against the city and the contractor performing the work, for damage to property resulting from the construction of public works under the provisions of Article 1, Section III, par. 1, of the Constitution.

2. The liability of the defendant city, under such constitutional provision, to pay for damage to private property resulting from such public works, is primary and absolute, and it is immaterial that the work may have been done by an independent contractor.

3. In such a case the measure of damages is the actual diminution in market value of the property as a result of such work, and allegations in the petition seeking to set up additional items of damage should have been stricken on proper special demurrer.

DECIDED APRIL 18, 1951. REHEARING DENIED MAY 4, 1951.

Edward P. Kenny, Ethel M. Kenny, and Frances M. Kenny filed their petition in the Superior Court of Fulton County against the City of Atlanta and Wright and Lopez Inc., seeking damages on account of the destruction of the plaintiffs' building alleged to have resulted from the acts of the defendants. It was alleged that the plaintiffs owned certain described realty at the Southeast corner of Ivy and Gilmer Streets in the City of Atlanta with a two-story building located thereon; that on March 24, 1949, the City of Atlanta was constructing a ditch along the sidewalk abutting the plaintiffs' property, said ditch being constructed for the purpose of laying therein certain cables and wires leading to a lot situated on the southeast corner of Courtland and Gilmer Streets; that the said cables and wires were for the use of a fire station signal center, which was being erected by the City of Atlanta for the use of its fire department; that the said ditch was dug along the southern line of Gilmer Street and along the eastern line of Ivy Street contiguous to the walls and supports of the plaintiff's building; that said building had at the corner of Ivy and Gilmer Streets a steel pillar supported the corner, which, by means of two steel girders, supported the wall and second story of the building; that the defendant city employed the defendant corporation to make the excavation, and that as a result of the digging of the ditch, the lateral support of the ground beneath the corner pillar of the building was withdrawn causing the ground beneath the pillar to give way and the pillar to slide into the ditch; that the support of the second story of the plaintiffs' building thus being removed, the building was caused to collapse and slide forward onto the sidewalk and into Gilmer and Ivy Streets, completely destroying the value of the building. It was alleged that immediately prior to this happening, the plaintiffs' building was in good and usable condition and worth $20,400, and that as a result of its collapse and fall into the street, the value of the building was totally destroyed; that the present market value of the building is nothing. The petition contained additional allegations respecting the rental value of the premises immediately preceding the fall of the building, and the rental value of the lot after the debris had been removed and also allegations respecting the cost of the removal of the debris, and it was alleged generally that the happening thus described was the proximate result of the failure of the defendants to use ordinary care in digging the ditch and to "take reasonable precautions to sustain petitioners' land during the process of the excavations," and was the result of the failure of the defendants to notify the petitioners of their intention to make the excavations. The prayer was for process and that the plaintiffs have and recover of the defendants the diminution in the market value of the premises, a sum for loss of rentals, a sum for the cost of removal of the debris from the premises, and "the further sum of $150.00 per month as diminution in rental value" past present and future, together with interest.

The defendants filed general and special demurrers to the petition, and the plaintiffs amended the petition by alleging that the cost of erecting a structure exactly similar to the structure destroyed would amount to $20,400; and that the cost of repairing the structure which was on the premises so as to make it as good as when destroyed would be $20,400. The defendants renewed their original demurrers, both general and special, the trial court overruled the demurrers to the petition as amended and the exception here is to that order.

WORRILL, J.

1. The plaintiffs in error have argued this case before this court upon the theory that the plaintiffs' petition is a suit for damages resulting from the removal of lateral support by the defendants. Counsel for the city argue that the plaintiffs in their petition have not laid their case under the constitutional provision prohibiting the damaging or taking of private property without compensation first being paid (Constitution of 1945, Article 1, Section III, paragraph 1, Code § 2-301, Code, Ann., 1948 revision); and, counsel go on to say that "indeed they could not, for the provision [above referred to] has no application to a happening of this kind."

With neither of these theses can we agree. While we have searched diligently and extensively for a precedent exactly in point, it does not appear that the question presented by the facts of this case and the argument of counsel for the plaintiffs in error has been before the courts of this State before, but there is ample authority sustaining in principle the right of the plaintiffs to maintain this action. Prior to the Constitution of 1877, the Supreme Court in a number of cases involving claims for damages resulting from the grading of streets and consequential damage to abutting landowners resulting therefrom, held that such owners could not recover for such consequential damage on the theory that the Constitution, in effect at that time, merely provided that private property should not be taken for public purposes without just compensation and that where the damage to the property did not result from an actual taking, no recovery would be had. See for example, Mayor, Council of Rome v. Omberg, 28 Ga. 46 (73 Am. D. 748); Roll v. Augusta, 34 Ga. 326; Fuller v. Atlanta, 66 Ga. 80.

However, there was embodied in the Constitution of 1877, the provision now contained in Article 1, Section III, paragraph 1 of our present Constitution that "Private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid." The Supreme Court first had occasion to construe this constitutional provision in a case involving the raising of the grade of a street, wherein it was shown that the city had raised the grade some 15 feet above the plaintiff's lot, making access to the lot from the street difficult, and had thrown earth on the lot, causing her premises to be overflowed with sand and water thus rendering her garden unfit for use and cultivation. In upholding the right of the plaintiff to recover against the city for damage to her property, the Supreme Court said: "The article [of the Constitution] does not define whether the damage shall be immediate and direct or consequential. Any damage to property for public use must receive its compensation. It may be and will, no doubt, often occur that the consequential damage may embody a more serious loss upon the owner than a temporary spoliation or invasion of the property. We must presume the convention intended that any damage, whether direct or consequential, done to property for public use, must be compensated for. Now this was private property and improvement of the street was being made for public use and if the property was damaged thereby, why would not this plaintiff below be entitled to just compensation for such damages? We think, therefore, the court did not err in instructing the jury that the former rule of law, which once obtained was altered and changed by the clause in the Bill of Rights heretofore cited in the Constitution of 1877." (Italics ours.) City of Atlanta v. Green, 67 Ga. 386. In Moore v. City of Atlanta, 70 Ga. 611, the court in speaking of the Green case said: "It was ruled there distinctly and it is now well-settled law in this State that if any owner of property be damaged by the grading of a street so as to lessen the pecuniary value of his property, he may recover damages for such injury to his freehold. That damage will be measured by the decrease in the actual value of his property." In City of Atlanta v. Word, 78 Ga. 276(3a), the court said: "Prior to the Constitution of 1877, a municipal corporation was not liable for damages resulting from the legislative act or exercise of judgment in ordering a street to be graded or a sewer therein to be constructed, but if the ministerial work of constructing such improvement was negligently done, the city was liable. Under the Constitution of 1877, the municipal corporation is made liable for damages resulting from such work, however skillfully done."

While the cases wherein the courts have considered the various aspects of this question are numerous, we think that the quotations above amply illustrate the principle involved. The plaintiffs in error seem to take the position that since the City of Atlanta did not actually appropriate or use any of the plaintiffs' property, and that since there was no intention to destroy the plaintiffs' building that no recovery can be had for its mere negligent or inadvertent or accidental destruction. This position is not tenable. While the authority of the city to establish fire stations and appurtenances thereto for the purpose of providing the citizens with fire protection, is a governmental function and for mere negligence or errors committed by the officers or employees of the city in performing such function, the city is not liable, where the city damages or take the private property of one as a result of the performance of such governmental functions, a right of action under the Constitution accrues. City of Atlanta v. Due, 42 Ga. App. 797, 802 ( 157 S.E. 256). In such a case allegations of negligence on the part of the defendants are not necessary and will be treated as surplus age. Gwinnett County v. Allen, 56 Ga. App. 753, 754 ( 194 S.E. 38). In a like manner, the plaintiffs' case does not depend on the failure of the defendants to give notice of their intention to dig the ditch, and the allegations in the petition in this regard can have no bearing on the plaintiffs' right to recover. Such allegations will be treated merely as surplus age.

In view of the construction we have placed upon the petition the allegations contained therein respecting the removal of lateral support are viewed merely as descriptive of the manner in which the damage resulted from the defendants' acts. It does not appear that the plaintiffs intended to bottom their case upon the theory of the removal of lateral support, and the petition is not so construed. See Campbell v. Metropolitan Street R. Co., 82 Ga. 320, 325 ( 9 S.E. 1078); Smith v. Floyd County, 85 Ga. 420, 424, 425 ( 11 S.E. 850); Mayor c. of Albany v. Sikes, 94 Ga. 30(1), 31 (20 S.E. 257); Barfield v. Macon County, 109 Ga. 386, 387 ( 34 S.E. 596); Roughton v. City of Atlanta, 113 Ga. 948(1) (39 S.E. 316); Langley v. Augusta, 118 Ga. 590, 598 ( 45 S.E. 486); Howard v. County of Bibb, 127Ga. 291, 293 (56 S.E. 418); City of Clarkesville v. McMillan, 143 Ga. 335(1) (85 S.E. 110).

The defendants, in excavating the ditch adjacent to the plaintiffs' property for the purpose of laying therein what may properly be termed an appurtenance of its fire protection system, was certainly engaged in work with a public purpose. When the plaintiffs' building collapsed as a result of this work, it can not seriously be contended that the building was damaged by reason of anything other than construction of improvements made for the use of the public, or that the damage was any less because the defendants had not intended to take or damage the building for the purpose of laying the cables and wires for the fire signal station. The principle announced in the cases from which we have quoted, and followed in the cases cited amply support the view that the plaintiffs' petition stated a cause of action under the constitutional provision referred to, and that the trial court did not err in overruling the general demurrers of the defendants.

2. The defendant City of Atlanta, demurred generally to the plaintiffs' petition and contended that it was not liable for the acts of the defendants Wright and Lopez, inasmuch as it appears in the petition that the said Wright and Lopez are independent contractors. One ground of the special demurrer seeks to compel the plaintiff to enlarge its allegations respecting the relationship between the defendant City and the defendant contractor, so as to show whether the relationship was one of agency or whether the defendant was an independent contractor. In this respect the petition alleged merely that the defendant, Wright and Lopez, is a corporation having offices in and doing business in Fulton County; that the City of Atlanta "employed" the defendant Wright and Lopez, to make the excavation and dig the ditch involved and that neither the defendant city, nor Wright and Lopez gave any notice to the petitioners of their intention to make such excavations and that the defendants did not use ordinary care or take reasonable precaution to sustain plaintiffs' land. Exhibit A to the plaintiffs' petition, which is a copy of the written notice to the defendant city, of the plaintiffs' claim for damages, states merely that on the day in question "Wright and Lopez, contractors" were digging the ditch involved.

These grounds of demurrer are without merit. While the petition alleges various acts on the part of the defendants as constituting negligence, the case as made by the petition is not one involving negligence as a necessary element and the city's liability for the damage or destruction of the plaintiffs' property is not dependent upon the doctrine of respondent superior. The city's liability is primary and absolute once it is shown that the damage resulted from the doing of work for a public purpose, and is based upon the constitutional guarantee. Under the allegations of the petition, the work was being done at the direction of the municipal authorities, and under such circumstances it was not incumbent upon the plaintiffs to show what the relationship between the parties was beyond showing merely that the work was being done under the direction and authority of the city. This is more particularly true since the contract between the defendants was a matter particularly within their knowledge, and not a matter within the knowledge of the plaintiffs. If there is anything in the relationship between the defendants upon which the city may raise a meritorious defense, such fact is a proper matter to be raised by proper defensive, pleading. The plaintiffs should not be required to enlarge the allegations of their petition in this respect simply to enable the defendant city to interpose a demurrer to the petition. See Mayor of Savannah v. Waldner, 49 Ga. 316.

3. Several grounds of special demurrer attacked various allegations of the plaintiffs' petition respecting the matter of damages. The plaintiffs alleged that the true market value of the building in question was $20,400, that as a result of the collapse of the building its value was totally destroyed; that the present market value is nothing, and the prayer, among other things, sought the $20,400, as the diminution in the market value of the premises. The allegations of the petition respecting this element of the damage were not subject to demurrer as attempting to set up an improper measure of damages. However, the allegations of the petition respecting the abandonment of the building by the tenant, the loss of rent as a result thereof and the diminution in the rental value of the premises, the cost of removing the wreckage and debris and the allegations respecting the rental of the cleared lot to another tenant were not properly a part of the plaintiffs' cause of action and the trial judge should have sustained the special demurrers, which properly raised this question and should have required the plaintiffs to strike all the allegations of the petition respecting these latter elements of damage. Streyer v. Ga. Sou. Fla. R. Co., 90 Ga. 56(2) (15 S.E. 637); City Council of Augusta v. Schrameck, 96 Ga. 426(1) (23 S.E. 400); Howard v. County of Bibb, supra; City Council of Augusta v. Lamar, 37 Ga. App. 418(6) (140 S.E. 763).

The judgment is affirmed on condition that the plaintiffs strike from the petition all allegations respecting damages save those showing the actual diminution in market value of the property in question as a result of the damage inflicted by the doing of the work for a public purpose, otherwise the judgment stands reversed.

Judgment affirmed on condition. Sutton, C. J., and Felton, J., concur.