McCrary v. City of Rome , 29 Ga. App. 384 ( 1923 )

Broyles, C. J.

(After stating the foregoing facts.)

Conceding (but not deciding) that the alleged acts of omission and commission on the part of the city’s employee were sufficient to constitute actionable negligence as against him personally, the petition shows- affirmatively that the negligence was operative while the employee was in the performance of a governmental function, for which, it is well settled, the city is not liable. Love v. Atlanta, 95 Ga. 129 (22 S. E. 29, 51 Am. St. R. 64); Cook v. Macon, 54 Ga. 468; Gray v. Griffin, 111 Ga. 361, 368 (36 S. E. 792, 51 L. R. A. 131); Mayor &c. of Dalton v. Wilson, 118 Ga. 100, 101 (44 S. E. 830, 98 Am. St. R. 101).

However, counsel for plaintiff in error contend that the instant case comes under and within that line of decisions in which it.is held that a municipality is liable for the negligent acts of its servants or employees while engaged in the performance of ministerial duties or functions, because of the allegations in the petition that the water-wagon was owned by,. and operated under, the water-works department of the city, and that the city operated that department for profit and gain. We cannot agree with this contention. This court will take judicial cognizance of the well-known fact that the dust in the streets of a city is liable to be infested with deleterious germs, and that the winds, or swiftly moving automobiles or street-ears, cause the dust and germs to fly about and settle in the eyes, ears, noses, and bronchial tubes of persons passing along the street, thereby producing in them illness and disease. We will also take judicial notice of the equally well-known fact that the sprinkling of streets tends to prevent the dust and germs from flying about and settling upon the persons of pedestrians and others who may be standing upon or passing through the streets. It clearly follows that the sprinkling of the streets of a municipality is conducive to the public health, and that, when done by the city, it is a governmental and not a ministerial function. It is true that the operation of a sj'stem of water-works by a city is not essentially a governmental function (Huey v. Atlanta, 8 Ga. App. 597 (1), 10 S. E. 71), but the sprinkling of its streets is not a necessary incident to the maintenance or operation of its water-works system, but, on the contrary, is an independent act, performed in connection with the maintenance of the public health, and one which is conducive to the health of all persons residing or visiting in the city, or merely passing through. The fact that the sprinkling was done by the water-works department of the city is immaterial. As was said by Justice Hill, who delivered the opinion for the court in Mayor &c. of Savannah v. Jordan, 143 Ga. 409, 414 (83 S. E. 109, 111; L. R. A. 1915C, 741; Ann. Cas. 1916C, 340), “It is not the character or name of the agent who executes the duty of removing the cause of discomfort and ill health to the public which fixes the character of the duty performed, but it is the act itself which determines whether it be governmental or ministerial. It is immaterial whether'the work is done under the supervision of the board of health of a municipality, or by the ‘ Director of Public Works/ or under the ‘ Streets and Lanes Department/ The duty is the same, and that is to remove from the streets all the sweepings and-garbage and whatever would contaminate the atmosphere and breed pestilence and disease; and such a duty is a governmental and not a-ministerial function. It is one that-the entire public, living within or without the municipality, is concerned in,— the enforcement of laws for the preservation of the comfort and health of the citizen.”

None of the decisions cited by counsel for the plaintiff in error is contrary to the ruling here made.

It follows from what has been said that the petition as amended failed to set out a cause of action, and that the court did not err in dismissing it on general demurrer.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.