Opinion
32080.
DECIDED JUNE 18, 1948. REHEARING DENIED JULY 8, 1948.
Action for damages; from Chatham Superior Court — Judge David S. Atkinson. April 22, 1948.
Aaron Kravitch, for plaintiffs.
John C. Wylly, Fred B. Davis, for defendant.
The duty of a city to maintain its sewerage and drainage system in a good working and sanitary condition is a governmental function for which there is no liability against the municipality in an action based on negligence, as in the present case; and the court did not err in sustaining the general demurrer to the plaintiffs' petition and in dismissing the action.
DECIDED JUNE 18, 1948. REHEARING DENIED JULY 8, 1948.
Mrs. Pearl E. Foster and Miss Chloe B. Giles, t/a Foster's Inc., filed suit against the Mayor and Aldermen of the City of Savannah for damages to their business and stock of goods, allegedly resulting from an obstruction in the main sewers and drainage system of the city.
The plaintiffs alleged that they operated a shop or store in the basement of a building located between St. Julian and Bryan Streets in the City of Savannah, said basement storeroom being about 12 or 15 feet below the city street level, and that immediately in the rear of the basement room is a small closet with a commode, used by the owners and patrons who visit the store, and until October 7, 1947, and for more than a year prior thereto, said commode functioned perfectly, but that on the above date the commode first showed signs of overflowing, and a plumber was called in who made an examination and found that the pipe from the commode to the city sewer was unobstructed, and that the overflow was caused by an obstruction somewhere in the city sewer, causing sewage from the streets and homes south of the plaintiffs' store to overflow into their place of business, and that petitioners immediately contacted various city officials and notified them of the condition, and that superficial inspections were made by city officials, until finally, after a period of 15 days, on October 22, 1947, the defendants opened up the street through which the sewer passes, removed the obstruction, and stopped any further damage. Plaintiffs alleged damages of $762.05 to their furnishings and stock of goods, and $1000 for the loss of business. They alleged that they were free from fault and that the damages sustained by them were due to the negligence of the defendants, as follows: "(a) In failing, by the exercise of ordinary care and diligence, to keep said sewerage system located in said city and in the near proximity of petitioners' place of business clear, free and unobstructed so that the sewerage and drainage could flow unobstructed through said drainage system without the necessity of overflowing and backing up into the place of business of your petitioners. (b) In failing to make inspections at reasonable intervals sufficient to ascertain that said sewerage system was not properly functioning and to have the same in such a state of repair that damages would not result therefrom. (c) Through neglect and negligence in permitting said sewerage system to become blocked, clogged and obstructed so as to interfere with the free and uninterrupted passage of sewerage and drainage matter flowing therein so as to prevent the same running into the premises of your petitioners and damaging their property. (d) In negligently failing to take steps within a reasonable time to clear the obstruction in said sewerage system and although notice was given to said defendants on the 7th day of October, 1947, no real effort was made to clear said obstruction until the 22nd day of October, 1947," when the obstruction in the sewer line was finally cleaned out by the defendants. "(e) Through negligence and neglect, causing and permitting the damages which petitioners sustained and which was the direct and proximate cause for the injuries for which this action is brought." Attached to the petition is a copy of a letter to the Mayor and Aldermen of the City of Savannah giving notice of the claim, and a letter from the petitioners to their counsel listing the specific items damaged. An amendment to the petition alleged that the petitioners had exercised diligence to prevent damage to their property in keeping with the facts and circumstances of the incident.
The defendants filed general and special demurrers to the petition, and the plaintiffs assign error on the order of the court sustaining the general demurrer, and dismissing the petition as amended.
The present action is based on alleged negligence of the city in failing to remove obstructions in its sewerage system, or in general terms, in failing to properly maintain its sewerage system, including the failure after notice to remove an obstruction in its sewer line which caused an overflow of water and sewage into plaintiffs' store and damage to their goods and business as alleged. In an action in tort against a municipality based on negligence, a distinction is made as to liability, dependent on whether the tort arose from negligence in the exercise of, or the failure to perform, a governmental function, for which the municipality is not liable; or whether it arose from negligence in the exercise of, or the failure to perform, a ministerial function, for which the municipality is liable. See Code, § 69-301. The line of distinction between what is the exercise of a governmental function and what is a ministerial function is not always clear; but in this State it has been settled by judicial decisions that the duty of a city to maintain its sewerage and drainage system in a good working and sanitary condition is a governmental function. See City Council of Augusta v. Cleveland, 148 Ga. 734 ( 98 S.E. 345), where it was held: "1. The duty of a city to maintain its sewerage-drainage system in a good working and sanitary condition is a governmental function. 2. Such maintenance of a sewerage system has reference to the preservation of the public health. 3. This court will take judicial notice of that fact. 4. This court will also take judicial cognizance of the fact that the cleaning out of an essential part of a city's sewerage drainage system for the purpose of keeping it open and unclogged by dirt, sand, or other foreign substances, so that it can properly perform its functions as a part of the system, is a necessary work in a proper maintenance of the system, and is a work connected with the preservation of the public health." In so holding the assumption was made that the system was not operated for profit and that no substantial charges were made for the ordinary use, enjoyment, and benefits of the system. In the present case it is not alleged that the sewerage system was operated for profit, or that substantial charges were made for the ordinary use, enjoyment, and benefits of the system, and as the case is here upon the sustaining of a general demurrer to the petition, it will be assumed that the system is not operated for profit, and that no substantial charges are made for the ordinary use, enjoyment, and benefits of the system. Under the facts alleged the present action is one based on negligence in the exercise of, or the failure to perform, a governmental function, for which there is no liability against the defendants. In this connection see Brannan v. Brunswick, 49 Ga. App. 62 ( 174 S.E. 186); Watkins v. Toccoa, 55 Ga. App. 8 ( 189 S.E. 270); Harvey v. Savannah, 59 Ga. App. 12 ( 199 S.E. 653); Mayor c. of Savannah v. Jones, 149 Ga. 139 ( 99 S.E. 294); Clay v. Rome, 74 Ga. App. 754 ( 41 S.E.2d 337).
Where a municipality in the exercise of its functions, both governmental and ministerial, creates a nuisance which is specially injurious to an individual, such individual may have a cause of action for damages, and negligence is not an essential ingredient of the action. City of Macon v. Roy, 34 Ga. App. 603, 605 ( 130 S.E. 700). Also see City of Macon v. Macon Paper Company, 35 Ga. App. 120 ( 132 S.E. 136); Langley v. Augusta, 118 Ga. 590, 598 ( 45 S.E. 486, 98 Am. St. R. 133); Kea v. Dublin, 145 Ga. 511 ( 89 S.E. 484). The plaintiff in error cites and relies upon some of the cases next above cited, but they are not applicable or controlling in this case.
The case of the City of Atlanta v. Trussell, 21 Ga. App. 340 ( 94 S.E. 649), cited and relied upon by the plaintiff in error, was decided prior to the Cleveland case, supra, and if the ruling in that case conflicts with the Cleveland case, the same must yield to the ruling in the Cleveland case. The cases of Mayor c. of Savannah v. Spears, 66 Ga. 304, and Mayor c. of Savannah v. Cleary, 67 Ga. 153, were based on special statutory liability, and have no application to the present case. We have considered the other cases cited by the plaintiff in error, but they are distinguishable on their facts from this case and do not authorize or require a different ruling from the one made in this case.
The court did not err in sustaining the general demurrer to the plaintiff's petition as amended and in dismissing the action.
Judgment affirmed. Felton and Parker, JJ., concur.