City Of Atlanta v. Garner, 26330.

• Decision Date: 23 September 1937
• Docket Number: No. 26330.,26330.
• Citation: 56 Ga.App. 435,192 S.E. 841
• Parties: CITY OF ATLANTA. v. GARNER.
• Court: Georgia Court of Appeals

56 Ga.App. 435

192 S.E. 841

CITY OF ATLANTA.

v.GARNER.

No. 26330.

Court of Appeals of Georgia,

Division No. 2.

Sept. 23, 1937.

Syllabus by Editorial Staff.

Error from Superior Court, Fulton County; Paul S. Etheridge, Judge.

Suit by I. O. Garner against the City of Atlanta. To review the judgment, defendant brings error.

Reversed.

J. C. Savage, C. S. Winn, Bond Almand, and J. C. Murphy, all of Atlanta, for plaintiff in error.

Clint W. Hager and J. F. Kemp, both of Atlanta, for defendant in error.

Syllabus Opinion by the Court.

SUTTON, Judge.

1. "Municipal corporations shall not be liable for failure to perform, or for errors in performing, their legislative or judicial powers. For neglect to perform, or for improper or unskillful performance of their ministerial duties, they shall be liable." Code, § 69-301. This section has been construed as intending to declare that municipal liability should attach only for neglect to perform, or for improper or unskillful performance of ministerial duties, leaving intact "the common-law doctrine, frequently applied in this state before and since the adoption of the Code, of nonliability for conduct of officers, agents, and servants of municipal corporations in respect to duties devolving upon them in virtue of the sovereign or governmental functions of the municipality." Cornelisen v. City of Atlanta, 146 Ga. 416, 417, 91 S.E. 415, 416.

2. Where a plaintiff files suit against a municipal corporation to recover damages for the negligent homicide of her husband while engaged in repairing, under its direction, its city auditorium, the petition not specifically stating for what purpose the auditorium was maintained, but reciting that the municipal corporation leased or rented the same from time to time for private purposes for gain, the petition, construed most strongly against the pleader on demurrer, will be held to mean that the auditorium was maintained by the municipal corporation primarily as a public institution for the use and benefit of its citizens. In using labor to repair the roof of such a public institution the municipal corporation was engaged in the exercise of a governmental power.

3. Where a municipal corporation maintains a city auditorium primarily for the use and benefit of the public, its operation and maintenance is by virtue of the governmental powers of the municipality, and no municipal liability attaches to the nonperformance or improper performance of the duties of the officers, agents, or servants of the city in respect to keeping the building safe for use by members of the general public, or for failure to provide, for one engaged in making repairs to such building, a safe place to work. Watson v. City of Atlanta, 136 Ga. 370, 71 S.E. 664, 665; Cornelisen v. City of Atlanta, supra; Miller v. City of Macon, 152 Ga. 648, 110 S.E. 873; Reid v. City of Atlanta, 39 Ga. App. 519, 521, 147 S.E. 789; Petty v. City of Atlanta, 40 Ga.App. 63, 148 S.E. 747; Mayor, etc., of Savannah v. Lyons, 54 Ga. App. 661, 189 S.E. 63; Roberts v. Mayor, etc., of Savannah, 54 Ga.App. 375,...