City of Albany v. Maclin , 30 Ga. App. 119 ( 1923 )

Broyles, C. J.

(After stating the foregoing facts.) In our view of the case it is necessary to consider only the exception to the judgment upon the demurrers. While the petition charged that the defendant was negligent in nine particulars, and that all of these particulars constituted the proximate cause of the injury-sued for (nearly all of these allegations of negligence, however, were subject to the special demurrers interposed), the petition, properly construed (as a whole and most strongly against the plaintiff), clearly shows that the direct and proximate cause of the plaintiff’s damage was the substitution of the gasoline motor, which was insufficient in power to do the work for which it was intended. It is not shown by the petition, nor even alleged therein, that this motor was defectively constructed or negligently operated, but merely that it was not powerful enough to do the pumping work in the pumping house. It therefore is obvious that the direct and proximate cause of the damage sued for (which occurred while the gasoline motor was being used) was the -substitution of the gasoline motor for the electric motor, and it is clear, from the facts of the case, as disclosed by the petition, that this substitution was an error of judgment of the proper officials of the city, made in the performance of a duty devolving upon them in the exercise of a governmental function of the municipality, and, therefore, that the city was not liable for any damage caused by such an error. In Harrison Co. v. City of Atlanta, 26 Ga. App. 727 (107 S. E. 83), the proximate cause of the damage to the property sued for was a “ sewer-eye ” (in the street adjacent to the plaintiff’s property), which was too small to carry off the rainwater in the street, and this court there held: “ If the sewer-eye was too small, this was not the result of cnegligent construction,’ but' was an error in the plan, involving the exercise of judgment and discretion, for which the municipality would not be liable.” See also the many authorities cited and quoted from in the Harrison case.

The fact that in the instant case the error of judgment of the city officials occurred in an alteration of the original plan of the city’s sewerage-drainage system presents no good reason for an exception to the rule.

The error in overruling the general demurrer to the petition rendered the further proceedings in the case nugatory.

Judgment reversed,

hulee and Bloodworth, JJ., concur.