Sutton, C. J.
This was an action by John L. Hurley against the City of Atlanta for damages for personal injuries sustained by the plaintiff as a result of the alleged negligence of the defendant. The plaintiff's petition is quite lengthy, but the substance of the allegations therein, so far as deemed material for a decision of the question here presented, is: That the defend-' ant, City of Atlanta, has the authority and does operate a city prison farm where persons convicted of violating the ordinances of said municipality are confined and required to labor, upon failure to pay the fines imposed for such violations. On November 12, 1949, the plaintiff was arrested in the City of Atlanta on a charge of drunkenness, and was tried in the police court and sentenced to pay a fine of $12, or upon failure to pay the fine, to be confined at the city prison farm for 20 days. The defendant was engaged in extending Broad Street in said city, and in doing this work it was necessary to grade, cover and close excavations left where certain buildings had been removed. On November 14, 1949, the plaintiff, with other prisoners, was transferred by the defendant from the prison farm where he was working out his sentence to the Broad Street Extension [880] Project, and he and other prisoners were directed and ordered by the “boss” of the work-gang, who was an officer or an employee of the defendant, to get down into an excavation 8 or 10 feet deep, where a building had been removed, and while the plaintiff was in the excavation shoveling dirt and rocks, as ordered by the “boss man,” the walls of the excavation, composed of brick, rocks and dirt, caved in on the plaintiff, inflicting upon him very serious and permanent injuries; that the “boss-man” of the gang for the defendant was present, directing the work, and the cave-in and collapse of the walls of the excavation was caused by a sinker drill, commonly known as an air hammer, which was being used on the walls by another prisoner near the plaintiff, and under the directions and orders of the “boss-man” of the defendant in charge of the work and the prisoners at that time. Many acts of negligence were alleged against the defendant, such as, failing to inspect and brace the walls and sides of the excavation where the plaintiff was ordered and compelled to work, and where he was injured, and in failing to use reasonable care and diligence in providing a safe place and working facilities where the plaintiff was ordered and compelled to work, and in failing to give the plaintiff any warning of the dangerous condition of the excavation where he was injured, etc. It was alleged that the plaintiff was free from all fault and blame in the premises; and that his movements were controlled and directed by the “boss” or guard having and exercising authority to compel him and other prisoners to obey his orders.
The defendant filed a general demurrer to the petition on the grounds (1) that the petition fails to set out a cause of action; (2) that the petition shows on its face that, at the time the plaintiff claims to have received his injury, the defendant city was in the act of discharging a public duty and exercising a governmental function and supervising the labor on the public works and the labor of municipal prisoners; and (3) that the petition shows on its face that the injuries of the plaintiff are claimed to have occurred through the acts of negligence of fellow servants or fellow workers of the plaintiff, for which negligence the defendant city could not be held accountable.
The demurrer was overruled, and the defendant excepted.
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Sutton, C. J.
This was an action by John L. Hurley against the City of Atlanta for damages for personal injuries sustained by the plaintiff as a result of the alleged negligence of the defendant. The plaintiff's petition is quite lengthy, but the substance of the allegations therein, so far as deemed material for a decision of the question here presented, is: That the defend-' ant, City of Atlanta, has the authority and does operate a city prison farm where persons convicted of violating the ordinances of said municipality are confined and required to labor, upon failure to pay the fines imposed for such violations. On November 12, 1949, the plaintiff was arrested in the City of Atlanta on a charge of drunkenness, and was tried in the police court and sentenced to pay a fine of $12, or upon failure to pay the fine, to be confined at the city prison farm for 20 days. The defendant was engaged in extending Broad Street in said city, and in doing this work it was necessary to grade, cover and close excavations left where certain buildings had been removed. On November 14, 1949, the plaintiff, with other prisoners, was transferred by the defendant from the prison farm where he was working out his sentence to the Broad Street Extension [880] Project, and he and other prisoners were directed and ordered by the “boss” of the work-gang, who was an officer or an employee of the defendant, to get down into an excavation 8 or 10 feet deep, where a building had been removed, and while the plaintiff was in the excavation shoveling dirt and rocks, as ordered by the “boss man,” the walls of the excavation, composed of brick, rocks and dirt, caved in on the plaintiff, inflicting upon him very serious and permanent injuries; that the “boss-man” of the gang for the defendant was present, directing the work, and the cave-in and collapse of the walls of the excavation was caused by a sinker drill, commonly known as an air hammer, which was being used on the walls by another prisoner near the plaintiff, and under the directions and orders of the “boss-man” of the defendant in charge of the work and the prisoners at that time. Many acts of negligence were alleged against the defendant, such as, failing to inspect and brace the walls and sides of the excavation where the plaintiff was ordered and compelled to work, and where he was injured, and in failing to use reasonable care and diligence in providing a safe place and working facilities where the plaintiff was ordered and compelled to work, and in failing to give the plaintiff any warning of the dangerous condition of the excavation where he was injured, etc. It was alleged that the plaintiff was free from all fault and blame in the premises; and that his movements were controlled and directed by the “boss” or guard having and exercising authority to compel him and other prisoners to obey his orders.
The defendant filed a general demurrer to the petition on the grounds (1) that the petition fails to set out a cause of action; (2) that the petition shows on its face that, at the time the plaintiff claims to have received his injury, the defendant city was in the act of discharging a public duty and exercising a governmental function and supervising the labor on the public works and the labor of municipal prisoners; and (3) that the petition shows on its face that the injuries of the plaintiff are claimed to have occurred through the acts of negligence of fellow servants or fellow workers of the plaintiff, for which negligence the defendant city could not be held accountable.
The demurrer was overruled, and the defendant excepted.
[881] The plaintiff was a prisoner, engaged in working out a sentence on a public street in the City of Atlanta when he was injured as alleged. The general rule in this respect is that “A municipal corporation is not liable for injuries to prisoners or convicts resulting from the negligence of the keeper, guard, policeman, or convict boss in charge of them, for the reason that, in the maintenance of a jail and the working of convicts, the municipality is exercising governmental duties, and cannot be held responsible for the negligence or misconduct of officers which it must, of necessity, employ.” 46 A.L.R. 100. The case of Nisbet v. City of Atlanta, 97 Ga. 650 (25 S. E. 173), is very similar to the present case, and the ruling there made is applicable to and controlling in the case at bar. The opinion in that case is as follows: “The question involved in this case has been too often passed upon by this court to require further elaboration. Neither the law of master and servant nor the doctrine of respondeat superior applies in a case where a prisoner undergoing punishment for a violation of a municipal ordinance is injured or killed in consequence of the negligence or misconduct of the officer having the custody or control of such prisoner. This is true because, in such matters, the municipal corporation is exercising governmental powers and discharging governmental duties, in the course of which it, of necessity, employs the services of the officer in question. See the case of Wilson v. Mayor & Council of Macon, 88 Ga. 455 [14 S. E. 710], which is directly in point, and'the authorities there collected; and, also, the opinion of Justice Atkinson in the more recent case of Love v. City of Atlanta, 95 Ga. 129 [22 S. E. 29, 51 Am. St. R. 64], which, in principle is decisive of the case now in hand,” and the ruling in the headnote is: “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 the proper medical attention and treatment.” It was said in Gray v. Mayor &c. of Griffin, 111 Ga. 361, 363 (36 S. E. 792, 51 L.R.A. 131), “The general rule is [882] well established, that a municipal corporation is not liable in damages for injuries sustained by reason of the negligent or improper exercise of a purely governmental power. The preservation of the public peace, quiet, good order, etc., of a community is a governmental function. Where the legislative authority of a city passes ordinances for such purposes, it is clearly exercising a governmental power. When, for the purpose of enforcing such ordinances, the city erects and maintains a prison wherein to confine offenders, for the purpose of punishment, or those charged with offenses, for safe-keeping until they can be tried, it is exercising the same power. The enactment of such ordinances and the provisions made for their enforcement belong to the police power, which is purely governmental in character [Italics ours.]. . . ‘The principle of non-liability rests upon the broad ground that, in the discharge of its purely governmental functions, a corporate body to which has been delegated a portion of the sovereign power, is not liable for torts committed in the discharge of such duties and in the exercise of such powers.’ " Also, see Doster v. City of Atlanta, 72 Ga. 233, Wilson v. Mayor &c. of Macon, 88 Ga. 455 (supra), Love v. City of Atlanta, 95 Ga. 129 (supra), and Archer v. City of Austell, 68 Ga. App. 493, 495 et seq. (23 S. E. 2d, 512). As above stated, the general rule is that a municipality is not liable for injuries to a prisoner received while confined in a prison or while working out a prison sentence, and such rule prevails in this State. However, a different rule has been adopted in some of the other jurisdictions, for instance, Alabama; and the defendant in error cites and relies upon the case of Hillman v. City of Anniston, 214 Ala. 522 (108 So. 539, 46 A.L.R. 39), among others, as supporting his position in the present case.
We have read and carefully considered the lengthy and elaborate brief of the defendant in error, but we are of the opinion that this case is controlled by the authorities cited above in this decision, and not by the authorities cited by the defendant in error. Of course, it is well settled law that a municipal corporation in this State is liable for neglecting to perform or for improper or unskilled performance of its ministerial duties. But the present case comes within the rule that a municipal corporation in this State is not liable for damages to one who is injured [883] while the municipality is engaged in the performance of a governmental duty.
The plaintiffs petition was subject to the defendant’s general demurrer, and the trial judge erred in overruling the demurrer.
Pursuant to the act of 1945 (Ga. L. 1945, p. 232; Code, Ann. Supp., § 24-3501), requiring that the full court consider any case in which one of the judges of a division may dissent, this case was considered and decided by the court as a whole.
Judgment reversed.
MacIntyre, P.J., Gardner and Worrill, JJ., concur. Townsend, J., concurs specially. Felton, J., dissents.