Opinion
29559.
DECIDED DECEMBER 4, 1942.
Action for damages; from Cobb superior court — Judge Hawkins. January 9, 1942.
David Gershon, for plaintiff. Sam J. Welsch, for defendant.
1. A municipality, in caring for persons arrested by its officers for violations of city ordinances, discharges a public duty and exercises a governmental function.
2. A municipal corporation is not liable for maintaining its jail in a defective or unfit condition by reason of which a prisoner confined therein is killed.
DECIDED DECEMBER 4, 1942.
Mrs. Beatrice Archer brought suit against the City of Austell to recover damages for the death of her husband. The plaintiff alleged that on December 7, 1940, about 11 p. m., her husband, Robert Lee Archer, was arrested by the marshal of the municipality and charged with driving a car while drunk; that such marshal placed the plaintiff's husband in the defendant's jail room; that such jail consists of one room attached to the rear of the defendant's city hall and is constructed of concrete, with walls approximately two feet thick; that this jail room is about 13 by 15 feet in size, with a slanting ceiling about 8 or 9 feet high; that the door to the jail room is a steel barred door, and the defendant has placed on the outside of this door a solid wooden door which, when closed, entirely cuts off the passage of air through the steel door; that there are two small windows high up in the east wall of the jail room; that sometime after constructing the jail the defendant placed a heavy metal grating over these two windows which almost closed up the openings and admitted practically no air into the jail room; that with the solid wooden door of the jail closed there is no way to get any ventilation at all into the jail except through a few small cracks in the almost completely closed windows; that the effect of the wooden door being closed is to make of the jail room almost a "hermetically sealed chamber;" that the marshal placed the plaintiff's husband in this jail room and made a fire in the little coal heater located in the jail room, and locked the steel door and closed the solid wooden door in front and then left the building; that when the marshal left the jail the plaintiff's husband was left alone in the building and had no means of getting out; that shortly after the marshal left the mattress on the cot in the jail on which the plaintiff's husband was lying asleep in some way became ignited from the fire in the stove and began smouldering slowly; that this filled the jail room with smoke and awoke the plaintiff's husband who went to the windows to get air and to cry for help; that the jail is a considerable distance away from any of the homes in the vicinity, and although several persons heard the plaintiff's husband calling for some one to come to the jail none of them believed it was serious and nobody went to him; that because of the closed door and because the windows were almost completely closed the smoke from the burning mattress on the inside of the room could not escape, and not enough air could get through the windows to keep the plaintiff's husband alive; that because of the smoke and because he was unable to get sufficient air to keep him alive the plaintiff's husband soon died from suffocation caused by the smouldering mattress; that because of the inadequate ventilation which was provided by the defendant for such jail room, and because the jail room was maintained by the defendant in such a way that the smoke from the smouldering mattress could not escape, and that therefore the plaintiff's husband could not get sufficient air to keep him alive, the plaintiff's husband suffocated.
It was further alleged that on occasions, previous to the time the plaintiff's husband was locked in jail, other prisoners who were locked therein had come near dying from suffocation caused by the smoke coming in some way from the fire in the heater provided by the defendant; that the defendant's attention had been called to the fact that the "virtually complete closing up of the windows" of the jail by the grating which the defendant had placed on them created an inadequate ventilation in the jail room, and thereby constituted a serious danger to the lives of prisoners in the event of the escape of what would ordinarily not be a dangerous amount of smoke into the jail room; that the defendant's attention had been called to the fact that because of this lack of ventilation in the jail room a fire burning in the stove which was provided by the defendant could, through some ordinarily minor mishap causing an amount of smoke to be emitted into the room, kill by suffocation any person locked therein; that the defendant therefore knew that its jail, because of the lack of ventilation provided therein, was, when a fire was burning therein and the door closed, a place in which it was dangerous to lock human beings, there being no jailer or other person in attendance so as to let out any persons who might be therein in the event smoke should escape into the jail room; that the defendant had previously had the dangerous condition of the building called to its attention, and that the jail room in which the plaintiff's husband was incarcerated constituted, at the time and under the facts above set forth, a nuisance which was dangerous to the safety of persons locked up in such jail.
The plaintiff alleged that as the result of the maintenance of such nuisance her husband was killed, and she was damaged in the sum of $30,000, her husband being an able-bodied man thirty-four years of age, with a life expectancy of 31.86 years at the time of his death. The plaintiff also alleged that more than thirty days before the filing of suit she had filed her claim with the city giving to it notice of her intention to bring this suit, as provided in Code § 69-308.
The defendant demurred generally to the petition. The judge sustained this demurrer and dismissed the action and the plaintiff excepted.
"Municipal corporations shall not be liable for failure to perform, or for errors in performing, their legislative or judicial powers. For neglect to perform, or for improper or unskillful performance of their ministerial duties, they shall be liable." Code § 69-301. The maintenance of a jail by a municipality is a governmental function, and the municipality is not liable for injury to a prisoner resulting entirely from the negligent maintenance and keeping of the prison. Gray v. Griffin, 111 Ga. 361 ( 36 S.E. 792, 51 L.R.A. 131); Long v. Elberton, 109 Ga. 28, 32 ( 34 S.E. 333, 46 L.R.A. 428, 77 Am. St. R. 363). In Nisbet v. Atlanta, 97 Ga. 650 ( 25 S.E. 173), the Supreme Court ruled: "A municipal corporation is not liable in damages for the death of one convicted in a corporation court and sentenced to work upon the public streets, although his death was occasioned while the convict was engaged in such work, and resulted from negligence on the part of the foreman who had been placed by the municipal authorities in charge thereof, and from the failure of such foreman to provide the convict, after his injury, with proper medical attention and treatment." The court said that the reason the municipality was not liable in such case was because at the time "the municipal corporation is exercising governmental powers and discharging governmental duties."
In Brown v. Guyandotte, 34 W. Va. 299 ( 12 S.E. 707, 11 L.R.A. 121), quoted in Gray v. Griffin, supra, it was held: "A town is not liable for damages for the death of a person caused by the burning of its jail while such person was confined therein for a violation of its ordinances, though such fire was attributable to the wrongful act or negligence of the officers or agents of the town." It was stated that this was so because the duty and function of keeping a jail and confining therein offenders against municipal ordinances were plainly purely governmental in character. In Gullikson v. McDonald, 62 Minn. 278 ( 64 N.W. 812), quoted in Gray v. Griffin, supra, the Supreme Court of that State ruled: "A municipal corporation is not liable for negligently maintaining its lockup in a defective and unfit condition, by reason of which a prisoner confined therein is injured." Other cases along the same line are LeClef v. Concordia, 41 Kan. 323 ( 21 P. 272, 13 Am. St. R. 285); City of New Kiowa v. Craven, 46 Kan. 114 ( 26 P. 426); Blake v. Pontiac, 49 Ill. App. 543; Kelly v. Cook, 21 R.I. 29 ( 41 A. 571, 5 Am. Neg. R. 94); Eddy v. Ellicotville, 35 App. Div. 256 ( 54 N. Y. Supp. 800). The case of Gray v. Griffin, supra, turned upon the theory that in caring for persons under arrest for violation of municipal ordinances a municipality was discharging "a public duty."
"A municipal corporation shall not be liable for the torts of policemen or other officers engaged in the discharge of the duties imposed on them by law." Code § 69-307. "For acts done in the illegal performance of purely governmental functions, however illegally the authority may be exercised, the municipality is not liable." Davis v. Rome, 23 Ga. App. 188 (3) ( 98 S.E. 231). The town marshal of Austell in arresting and placing in the town lockup a person for drunken driving would be engaged in the discharge of a duty imposed on him by law. In Wilson v. Macon, 88 Ga. 455 ( 14 S.E. 710), the Supreme Court held: "A municipal corporation is not liable for personal injuries sustained by one prisoner at the hands of another confined in the same cell or room of the city prison, notwithstanding the police officer who arrested the plaintiff and put him in prison may have been guilty of wrong or negligence in confining him with an intoxicated fellow prisoner who was on that account violent and dangerous." It appeared from the allegations in that case as follows: "All of said injuries were the result of the negligence of the agents and servants of the city in the discharge of their ministerial duties, and their utter disregard for plaintiff's safety in so confining him with a man who was wild with drink, which fact was at the time well known to said agents and servants, and in not coming to his rescue for so long a time after he began to call for help, for in fact the agent and servant whose duty it was to keep the prison and receive and care for prisoners, wholly neglected to respond to plaintiff's call for help, and Bernard [the fellow prisoner] continued to beat him in the most brutal manner until a person far off in the street heard his cries and came to his assistance." The court affirmed the judgment sustaining the general demurrer.
In Long v. Elberton, supra, it was held that while the municipal authorities have a right to use and maintain a city jail "for the purposes intended, the duty rests upon them to maintain it in a proper manner, and if such maintenance after its erection should prove a nuisance, it is the right of any citizen [thereof] or other person interested, either to abate the same, or, if special and particular damage is caused to him, to obtain proper compensation for his injury." "Where a municipal corporation creates or permits a nuisance by nonfeasance or misfeasance, it is guilty of tort, and like a private corporation or individual, and to the same extent, is liable for damages in a civil action to any person suffering special injury therefrom." 43 C. J. 956, § 1734; City of Macon v. Roy, 34 Ga. App. 603 ( 130 S.E. 700); Lewis v. Moultrie, 27 Ga. App. 757 ( 110 S.E. 625); City of Dublin v. Kea, 20 Ga. App. 718 ( 93 S.E. 229). The rule that the municipal corporation is liable for the creation or maintenance of a nuisance on municipal property has been applied to the establishment and maintenance of prisons and workhouses. 43 C. J. 957, citing District of Columbia v. Totten, 55 App. D.C. 312 (5 Fed. 2d, 374, 40 A.L.R. 1461), and Long v. Elberton, supra.
It appears from the petition that the death of the plaintiff's husband was not caused by a nuisance, but was proximately caused by the act of the marshal, after he had placed the prisoner in jail and built a fire in the heater therein, in closing the solid wooden outside door, and, with knowledge that with the door closed the ventilation in the jail would be inadequate, particularly in the event of smoke being emitted therein, walking away, leaving the prisoner therein. It therefore follows that the petition failed to show any liability on the part of the municipality for the death of the plaintiff's husband, and was properly dismissed by the court on general demurrer.
Judgment affirmed. Sutton and Felton, JJ., concur.