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CITY OF CUMMING v. CHASTAIN, by Next Friend.
37017.
Tort; assault by policeman, etc.; action against city. Forsyth Superior Court. Before Judge Brooke. November 6, 1957.
CARLISLE, Judge.
Bobby Chastain, a minor, by his next friend, filed a suit in two counts in the Superior Court of Forsyth Count against the City of Cumming, a municipal corporation, Roy P. Otwell, its mayor, and T. O. Hansard and Jack Bentley, two police officers of the municipality. Without detailing them, it is sufficient to say that the petition alleged facts showing an assault by the defendant Hansard on the plaintiff by his (as alleged) wilful, reckless and wanton shooting of the plaintiff without cause or justification and with the intent to frighten and make sport of the occupants of an automobile in which the plaintiff was riding, by reason of which the plaintiff sustained enumerated serious injuries. It was alleged that the defendant Hansard had a record for violence in that he had exhibited a continuous course of reckless and unlawful conduct in disregard of the safety of the lives, limbs and property of others, and that this record was evidenced, among other things, by his having been arrested, convicted and sentenced by governmental authorities for specified instances of unlawful conduct of this nature. The plaintiff alleged numerous wrongful acts and omissions of the defendant municipality; in the licensing of the defendant Hansard to carry a gun and entrusting him with bullets, and in its failure to control the conduct of the defendant, and in employing the defendant Hansard as a police officer while having knowledge of his irresponsible and vicious character and disposition and while having knowledge that he was likely to conduct himself in a manner such as to create an unreasonable risk of harm to others. As respects the municipality, count 1 was based on its negligence in performing the acts as aforesaid, while count 2 was based on its negligence in the maintenance of a public nuisance in the employment and use of Hansard as an armed police officer while having knowledge of his alleged vicious propensities. The defendant filed a general demurrer to the petition as a whole and to each count, which the trial court overruled, and the exception here is to that judgment.
"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. "A municipal corporation is not liable for the wrongdoing or negligence of its police officers in the discharge of their ministerial duties. Wilson v. Mayor &c. of Macon, 88 Ga. 455 (14 S. E. 710), and authorities cited." Means v. City of Barnesville, 28 Ga. App. 671 (1) (112 S. E. 739). This has been the rule in the State of Georgia from the earliest times, and having been embodied in the 1933 Code, which was adopted by the legislature, it carries the force and effect of statute. This rule cannot be avoided or circumvented by allegations in the nature of conclusions seeking to assert as the basis for municipal liability the act of its placing its codefendant, Hansard, the active tortfeasor, in the position to commit the tort, nor by alleging that in employing him and retaining him on the payroll it was guilty of maintaining a nuisance when the facts otherwise alleged affirmatively show that the real asserted basis of liability is on the theory of respondeat superior for the tortious conduct of a policeman. In advancing these theories, while counsel for the plaintiff may deserve credit for his ingenuity, the facts of the case as alleged in the petition show that, in the final analysis, the sole asserted basis of municipal liability is on the theory of respondeat superior, and the facts thus throw the case squarely within the rules first enunciated above.
While this court recognizes that the passage of time and changing conditions may bring with it the assertion for the first time of rights heretofore never asserted or never enforced by the courts of this State ( Tucker v. Carmichael & Sons, Inc., 208 Ga. 201, 65 S. E. 2d 909), and that the fact that such rights exist and give a cause of action should not be denied simply because they have not been previously enforced, this principle is no warrant for overturning a firmly established rule denying the existence of the right merely by applying a novel theory to old facts. If the existing rule is to be altered, it would seem to be for the legislature to decide rather than for the courts.
For these reasons the petition fails to set forth a cause of action in either count against the City of Cumming, and the trial court erred in overruling the general demurrer of the municipality.
Heyman, Abram & Young, contra.
Jess H. Watson, for plaintiff in error.
DECIDED JANUARY 27, 1958.
Saturday May 23 01:10 EDT


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