Cornelisen v. City of Atlanta

• Decision Date: 13 February 1917
• Docket Number: 231.
• Parties: CORNELISEN v. CITY OF ATLANTA.
• Court: Georgia Supreme Court

91 S.E. 415

146 Ga. 416

CORNELISEN v. CITY OF ATLANTA.

No. 231.

Supreme Court of Georgia

February 13, 1917

Syllabus by the Court.

Where a city maintains a park primarily for the use of the public intended as a place of resort for pleasure and promotion of health of the public at large, its operation is in virtue of the governmental powers of the municipality, and no municipal liability would attach to the nonperformance or improper performance of the duties of the officers, agents, or servants of the city in respect to keeping the park safe for use by members of the general public. It would not affect the public character of the duties of the officers, agents, or servants of the city that a purely incidental profit might result to the city from its operation or management of the park.

But if the city, having charter authority, maintain the park primarily as a source of revenue, the duty of maintaining it in a safe condition for the use for which it is intended would be ministerial, and municipal liability would attach for breach of such duty.

Certified Questions from Court of Appeals.

Action by Martin Cornelisen against City of Atlanta. Judgment for defendant, and plaintiff brings error. Questions certified by Court of Appeals. Questions answered.

Geo. H Gillon and Dean E. Ryman, both of Atlanta, for plaintiff in error.

J. L Mayson and W. D. Ellis, Jr., both of Atlanta, for defendant in error.

ATKINSON J.

The Court of Appeals has requested instruction upon certain questions of law, the nature of which is sufficiently disclosed in the headnotes, they being intended as answers to the questions, and from the following discussion:

In Civil Code, § 897, it is declared that:

"Municipal corporations are not 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 are liable."

This section is a codification of principles of the common law ( Collins v. Mayor, etc., of Macon, 69 Ga. 542; Rivers v. City Council of Augusta, 65 Ga. 376, 38 Am.Rep. 787; 2 Thomp. Neg. 731), and, being in the Code of 1895, which was adopted by the Legislature, has the effect of a statute (Central of Ga. Ry. Co. v. State, 104 Ga. 831, 31 S.E. 531, 42 L.R.A. 518); but the language is somewhat confused. It would seem at first impression, from reading the first sentence of the section alone, that it was intended that there should be implied liability for breach of every duty that did not involve exercise of "legislative or judicial powers"; but, if so, why go forward, and in the second sentence declare expressly that there should be liability for breach of "ministerial duties," and why, in preceding sections 893 and 896, should it have been declared that no liability should attach for torts of policemen or other officers, or, in the absence of statute requiring a municipality to perform an act, there should be no liability for exercising their discretion in failing to perform it? No such construction should be placed on the first sentence of section 897. The whole section should be construed together in connection with its cognate sections, and as intending to declare that municipal liability should attach only for neglect to perform, or for improper or unskillful performance of, "ministerial duties."

This construction would leave intact the common-law doctrine frequently applied in this state before and since 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. This doctrine has been applied in Love v. City of Atlanta, 95 Ga. 129, 22 S.E. 29, 51 Am.St.Rep. 64, a case based on negligence of the driver of a garbage cart in the employment of the board of health; Watson v. City of Atlanta, 136 Ga. 370, 71 S.E. 664, a case based on negligence of the driver of an ambulance for a city hospital; Rogers v. City of Atlanta, 143 Ga. 153, 84 S.E. 555, a case based on negligence of a fireman in cutting a hole in a floor while engaged in extinguishing a fire, and into which the plaintiff stepped; Mayor, etc., of Savannah v. Jordan, 142 Ga. 409, 83 S.E. 109, L.R.A. 1915C, 741, Ann.Cas. 1916C, 240, a case based on negligence of an inspector of the sanitary department in furnishing the driver of a garbage cart of the city with a defective vehicle, the axle of which broke and injured the driver. In those instances the duty was purely of a public nature, intended for the benefit of the public at large, without any pretense of private gain to the municipality; and, because it was such, no liability would attach, as a general rule. An exception to the general rule exists in the case of streets and sidewalks, which in the recent case of Ackeret v. City of Minneapolis, 129 Minn. 190, 151 N.W. 976, L.R.A. 1915D, 1111, Ann.Cas. 1916E, 897, was...