Caroway v. City of Atlanta

• Decision Date: 14 March 1952
• Docket Number: No. 2,No. 33755,33755,2
• Citation: 85 Ga.App. 792,70 S.E.2d 126
• Parties: CAROWAY v. CITY OF ATLANTA et al
• Court: Georgia Court of Appeals

Page 126

70 S.E.2d 126

85 Ga.App. 792

CAROWAY v. CITY OF ATLANTA et al.

No. 33755.

Court of Appeals of Georgia, Division No. 2.

March 14, 1952.

Rehearing Denied April 1, 1952.

Syllabus by the Court.

1. (a) Municipalities are not liable for the tortious acts of their servants and agents in the discharge of purely governmental functions, but are liable for such acts when performed in the exercise of ministerial or proprietary functions.

(b) A municipality which leases out portions of a municipal airport passenger terminal building for the purpose of obtaining revenue, and which, as a part of the lease agreements, obligates itself for the benefit of such lessees and their invitees to discharge certain duties upon the premises, which the lessees would otherwise necessarily have to perform in their own behalf, is, in the discharge of such duties, engaged in a proprietary function, and is liable to one injured by the negligent performance thereof.

(c) Section 4 of the Uniform Airports Act, Ga.L.1933, p. 102, Code, § 11-202 which provides that lands acquired, controlled, or occupied as landing fields for the use of aircraft shall be so acquired or controlled for public, governmental, and municipal purposes, was intended to be a declaration on the part of the Legislature of the public purpose as to which the authorization was given, and not as a limitation immunizing such municipalities from suit regardless of circumstances. Accordingly, the petition here, which alleged a negligent and improper performance of a duty performed by the municipality in a proprietary capacity, stated a cause of action.

2. The petition was not subject to general demurrer on the ground that its allegations affirmatively show the injuries to have resulted from lack of ordinary care on the part of the plaintiff.

The salient parts of the petition essential to this decision allege in substance: that the defendant City of Atlanta operated, in November, 1949, the Atlanta Municipal Airport Passenger Terminal in connection with the Atlanta Municipal Airport under and by virtue of the authority of Code Ann.Supp. § 11-201; that it leases space in this building to private companies engaged in commercial operations for profit; that the revenues thereby obtained are substantial, and not merely incidental revenue, and the said terminal building is operated by the city primarily as a source of revenue and not as a park or resort for the promotion of pleasure and health to the public generally; that the portions of the building not so leased are maintained and operated by the city in connection with the business operations above described, and include that area wherein the plaintiff was injured; that as to such areas the city, by lease agreement with the private enterprises therein, covenants to provide light, heat, signs, electricity, and water and to keep such space furnished, clean, neat, orderly, sanitary, and presentable, and thus undertakes by private contractual obligation the responsibilities and obligations which the said business enterprises are bound to fulfil as part of their operation for profit; that is so doing the city is performing a ministerial function of a private nature for the use of its lessees as an obligation of its leases, from which it obtains substantial revenue. It is also alleged that, on the date hereinbefore mentioned, the defendant, City of Atlanta, had failed to take proper precautions in waxing and cleaning the floor and an agent or servant of the city had left some thick wax at some point, which was transparent and could not be seen by the plaintiff; and that she fell and was seriously injured.

The trial court sustained a general demurrer to the petition, and this judgment is assigned as error.

Poole, Pearce & Hall, J. R. Goldthwaite, Jr., Atlanta, for plaintiff in error.

Henry L. Bowden, Gambrell, Harlan & Barwick, Robert R. Richardson, Atlanta, for defendant in error.

CARLISLE, Judge (after stating the foregoing facts).

1. A municipal corporation is not liable for a negligent performance of its governmental functions. Code § 69-301; Roberts v. Mayor, etc., of Savannah, 54 Ga.App. 375, 188 S.E. 39; City of Atlanta v. Carner, 56 Ga.App. 435, 192 S.E. 841. On the other hand, it is liable for the improper or unskilful performance of their ministerial functions. Code, § 69-301; Cornelisen v. City of Atlanta, 19 Ga.App. 436, 91 S.E. 510; Wright v. City Council of Augusta, 78 Ga. 241(a); Adepe v. City of Thomasville, 9 Ga.App. 880(2), 72 S.E. 478. It is contended by counsel for the defendant municipality that the provisions of Code, § 11-202 make the operation of an airport and an airport passenger terminal a governmental rather than a ministerial function; said Code section providing as follows: 'Any lands acquired, owned, leased, controlled, or occupied by such counties, municipalities, or other political subdivisions for the purpose or purposes enumerated in section 11-201, shall and are hereby declared to be acquired, owned, leased, controlled, or occupied for public, governmental, and municipal purposes.'

Without statutory authority the city could not own or operate an airport. Therefore, the city has no authority other than that conferred upon it by statute and the additional authority to perform such acts as may be necessary to effectuate the authority given it by statute, although, where such authority is given, the fact that the agents of the municipality proceeded thereunder in an irregular or illegal manner will not relieve the municipality from liability. Langley v. City Council of Augusta, 118 Ga. 590(4), 45 S.E. 486. Code § 11-201, supra, empowers municipalities to own, operate, lease, and control airports. Certainly the operation of an airport passenger terminal would be incidental thereto. Section 5(c) of the Uniform Airports Act of which Code, § 11-201 is a part, Ga.L.1933, pp. 102, 103, specifically empowers municipalities to lease such airports and space, area, improvements, and equipment on such airports to private parties for operation, provided the public is not deprived of equal use thereof. Code, § 11-205(c). The right to lease these facilities is expressly contemplated in this section of the act; and while the legislature designated the acquisition, control, and operation of the airport as a governmental function, it did not designate the leasing by it to private corporations as a governmental function. Such a lease necessarily contemplates that revenue will be received by the municipality. There is nothing in the statute law which instructs a city as to what profit it may make in connection with such operation. The case, therefore, must turn on the question of whether or not that part of the Code section designating the acquisition and control of an airport as a governmental function immunizes the defendant against liability in a case such as the one presently before us for consideration.

Taking the allegations of the petition as true--the city leased portions of the passenger terminal to private corporations for the purpose of obtaining revenue, and, as a part of the consideration, turned over to each of its lessees space in the terminal for their exclusive use; and in addition, as to each of them, undertook the responsibility of maintaining certain other central portions of the building for the use of the lessees and their customers by furnishing the same, providing lights and water, and keeping them clean, neat, orderly, sanitary, and presentable. Whatever obligation the municipal authorities might otherwise have had to provide these services to the public generally, it appears that they also provided them under contract to lessees as a source of revenue, since the consideration...