Banks v. City of Albany, 33359

• Decision Date: 02 March 1951
• Docket Number: No. 33359,No. 1,33359,1
• Citation: 64 S.E.2d 93,83 Ga.App. 640
• Parties: BANKS v. CITY OF ALBANY
• Court: Georgia Court of Appeals

Page 93

64 S.E.2d 93

83 Ga.App. 640

BANKS v. CITY OF ALBANY.

No. 33359.

Court of Appeals of Georgia, Division No. 1.

March 2, 1951.

Rehearing Denied March 16, 1951.

Syllabus by the Court.

1. It is well settled law in this State that a municipal corporation is not liable for the negligence of its officers and employees when acting in a governmental function.

2. The operation or maintenance of a fire department by a municipal corporation is a governmental function. And where, as here, the city was authorized to furnish fire protection beyond its corporate limits under such rules, regulations and charges that the Board of City Commissioners might prescribe, the fact that a reasonable annual fee was charged for such service did not change the operation of the fire department from a governmental function to a ministerial one.

3. The plaintiff's petition was subject to the defendant's general demurrer, and the trial judge did not err in sustaining the demurrer and dismissing the action.

W. E. Banks filed his petition against the City of Albany and alleged the following: The charter of the defendant was amended by an act of the General Assembly of Georgia of 1941, page 1010, approved Feb. 11, 1941, whereby the defendant was authorized to furnish fire protection without the corporate limits of the City of Albany under such rules, regulations and charges as the Board of City Commissioners of the defendant might prescribe. The defendant in accordance with the authority of said amendment passed and adopted an ordinance on September 23, 1947, as follows: 'Be it ordained by the authority aforesaid that no call shall be answered by the fire department outside the corporate limits of the City of Albany, Georgia, unless the property owner, in advance of making such call, shall comply with the following conditions: (1) Register at the office of the Chief of the Fire Department and pay an annual registration fee as follows: All property outside of the present corporate limits but within the area included in the new corporate limits by virtue of the act of the General Assembly approved March 23, 1947, and known as Albany Charter Amendment shall pay $6.00 per residence; $10.00 per plant for small business; $20.00 per plant for manufacturing and large industrial plants.

'All property outside of the new city limit area but within the area described in Section 5 of this Ordinance, shall comply with the following conditions: (1) Register at the Office of the Chief of the Fire Department and pay an annual registration fee as follows: $10.00 per residence; $15.00 per plant for small business; $30.00 per plant for manufacturing and large industrial plants.'

The plaintiff owned a residence outside the new city limit area of the City of Albany and became a subscriber under said ordinance, registering and paying the $10 prescribed in said ordinance for the fire protection service to be rendered for one year, which period had not expired on the date of the fire. On the night of June 12, 1950, the plaintiff's house and its contents were totally destroyed by fire, without fault on his part. The plaintiff's property was worth $5000 at the time it was destroyed. The fire department answered the plaintiff's call shortly after the building became ignited. The employees of the defendant appeared on the scene with a fire truck, but through the negligence of said employees the building and its contents were totally destroyed by fire. The negligence of the defendant and its employees consisted of the failure to protect said property and the failure to extinguish the fire although the defendant's employees could have done so if they had tried.

The plaintiff has served the defendant with a written notice of his claim for said loss, a copy of which is attached, and more than 30 days have elapsed from the time the written notice was served until the petition was filed. The defendant refuses to pay the plaintiff for his loss.

The passage and adoption of said ordinance and the charge made therefor was done for gain and profit by the city and the duties resting upon the defendant in connection therewith were ministerial and not a governmental function.

By amendment the plaintiff further alleged that the defendant's negligence arose from the following acts: (a) The defendant appeared with an inadequate supply of water; (b) the defendant appeared with faulty equipment and was therefore unable to make use of the natural water supply that was available in abundance; (c) the defendant refused to call other equipment to the scene though your petitioner repeatedly requested that the defendant do so; (d) the defendant then stood idly by and watched the premises burn.

The plaintiff also alleged in the amendment that the municipal defendant was possessed of charter authority to afford fire protection to patrons without and beyond its corporate limits primarily as a means and source of pecuniary gain and profit. The General...