Mayor of Savannah v. Cullens , 38 Ga. 334 ( 1868 )

McCay, J.

Although there may be found dicta that a corporation can not be sued for a tort, yet the authorities in support of the contrary doctrine are numerous 'and conclusive. Angel & Ames, sec. 382-385. Nor does a municipal corporation form any exception. The case of the Mayor of Lynn vs. Turner, Cowper, &e.,was against a municipal corporation for failing to repair and clean out a creek; indeed the old cases of suits against corporations for torts (that is, actions on the case for negligence,) are almost all against municipal corporations. See the cases cited in 16 East., 6.

If the wrong be a mere breach of public duty, and no damage to anyone, no action lies. 4th Maulé & S., 27.

As corporations almost always act by their agents, and as they, like private persons, are not liable for the willful trespasses of their agents, which they have not authorized or adopted, and which are not done in the course of the agent’s performance of his duty, but few cases are found of actions of trespass against corporations for actual wrongs done, but the books are full of actions on the case against both public and private corporations, for damages caused by a failure of the corporation to perform some duty cast upon it by law, Chesnut, Hill & Co., vs. Rutter, 4 Ser. & Rawle, 6.

2d. There is no doubt, also, that one of the corporators may be the plaintiff in a suit against a corporation. The corporation is itself a quasi person, and even as respects one of its'members, has a separate individuality. 2 Bay, 109; 5 Adol & Ellis, 866.

We think, therefore, that the motion in arrest of judgment was rightly overruled.

3. That there is a general duty upon the city of Savannah to keep its streets in repair, is, we believe, not questioned. Its defence, or rather its excuse, as to the streets, in this case, was a strong one. The law does not require impossibilities, and there is force in the argument, that when all could not be done at once, it was no breach of duty not to select, as the first to be repaired, any particular spot. On the other hand, the market was the property of the corporation, from which it derived a revenue, in the way of rents. Why was it not just as much bound to keep that safe as a merchant is the floor of his store ? To keep the market in a safe condition, it being property, and used by the city for its revenues, was a private duty. It was the duty of a property holder, and the city stands, in this respect, upon the same footing as an individual. It must use its own, so as not to hurt its neighbors.

Whatever was the condition of the streets, it was its duty not to have a trap, on its private property, by which a citizen was injured. We hold, therefore, that the Judge was right in his charge to the jury; that the market stood on a different footing from the streets, and that the excuse presented did not apply to it.

Judgment affirmed.